BYSV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, BYSV, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel their Class TY Subclass 444 Special Category (Temporary) visa under section 501(1) of the *Migration Act 1958* (Cth) due to failing the character test, specifically having a substantial criminal record. The Administrative Appeals Tribunal had affirmed this cancellation. The matter was heard by M Griffin QC SM in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the Tribunal had erred in its application of Ministerial Direction No. 90, which sets out the considerations for mandatory visa cancellation. Specifically, the court was required to determine if the Tribunal had given sufficient weight to the primary considerations, including the protection of the Australian community, the seriousness of the offending and future risk, the fact that the bulk of the applicant's offending occurred as a child, the impact of substance abuse, the best interests of the applicant's minor children in Australia, the applicant's cultural ties, the expectations of the Australian community, the extent of impediments to removal, and the strength, nature, and duration of the applicant's ties to Australia.

The court found that the Tribunal had failed to adequately consider and weigh the primary considerations as required by Ministerial Direction No. 90. While acknowledging the seriousness of the offending, the Tribunal had not sufficiently grappled with the mitigating factors, such as the applicant's age at the time of most of the offending, their efforts to address substance abuse, and the significant impact removal would have on their Australian citizen children. The court applied the principles of administrative law, emphasizing the need for a comprehensive and balanced assessment of all relevant factors.

Consequently, the court set aside the Tribunal's decision and substituted its own decision, remitting the matter for redetermination.