Brown and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application by the Applicant to the Tribunal to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa. The cancellation had been effected under section 501(3A) of the *Migration Act 1958* (Cth) on the basis that the Applicant did not pass the character test due to having a substantial criminal record. The Applicant sought revocation of the cancellation under section 501CA(4) of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, as required by section 501CA(4)(b)(i) of the Act. In determining this, the Tribunal was bound to consider Ministerial Direction No. 99, which provides a framework for decision-makers when exercising the discretion to revoke a mandatory visa cancellation. This involved assessing both primary and other considerations, and determining the appropriate weight to be given to each in the specific circumstances of the case.

The Tribunal acknowledged the Applicant's substantial criminal record, which was not disputed. However, it also had regard to the Applicant's representations concerning her life circumstances, including a history of sexual abuse, mental health issues, substance abuse, and the loss of close family members. The Applicant argued that the best interests of her two young children and her strong ties to Australia outweighed other considerations. The Tribunal referred to the principles outlined in paragraph 5.2 of Direction No. 99, which generally affords a higher tolerance for criminal conduct by non-citizens who have lived in Australia for most of their lives or from a very young age. The Tribunal noted that while primary considerations are generally given greater weight, "other considerations" are not necessarily secondary and may, in some circumstances, be afforded the greatest weight.

The Tribunal found that the Applicant had not met the requirements of section 501CA(4)(b)(i) of the Act, meaning there was no "another reason" to revoke the cancellation. Consequently, the decision under review was set aside and substituted with a decision to refuse to revoke the mandatory cancellation of the Applicant's visa.