BXTW and Minister for Home Affairs (Migration)

The applicant, BXTW, sought to have the mandatory cancellation of his Class TY Subclass 444 Special Category visa revoked. The cancellation was based on his failure to pass the character test, specifically due to being sentenced to a term of imprisonment of 12 months or more. The dispute before the Tribunal was whether there was another reason why the cancellation should be revoked, considering the application of Direction No. 79, which outlines the framework for assessing primary and other considerations.

The Tribunal was required to determine the appropriate weight to be given to various considerations under Direction No. 79, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. Specifically, the Tribunal had to assess the seriousness of the applicant's conduct, the risk of future offending, the impact on children under 18, and how the broader community might perceive the revocation of the visa. The legal issue also involved interpreting the "expectations of the Australian community" not as an empirical matter but as a "deeming expression" as articulated in *FYBR v Minister for Home Affairs*.

The Tribunal reasoned that while the applicant's offending history was objectively serious, there were substantial subjective factors and realistic hopes of rehabilitation that weighed in favour of non-revocation. It noted that the prospect of future offending was linked to substance abuse, and a supportive environment offered by a witness, Simetra, could be a "game changer" for rehabilitation. Regarding the best interests of minor children, the Tribunal found this to be a neutral factor, as it could not be satisfied that revocation was in their best interests unless the applicant controlled his drinking and drug use. The Tribunal ultimately substituted the original cancellation decision with a decision to revoke the cancellation.