Caires De Andrade and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's Class BF Transitional (permanent) visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant, who arrived in Australia as a one-year-old and had resided in Australia for over 50 years, had his visa mandatorily cancelled due to having a substantial criminal record. The Applicant sought to have this cancellation revoked.

The primary legal issues before the court were whether the Applicant continued to not pass the character test following a reduction in his sentence on appeal, and whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised. The court was required to consider the impact of subsequent events, specifically the reduction of the Applicant's sentence, on the validity of the original cancellation decision and the subsequent refusal to revoke it.

The court considered the High Court decision in *Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, which established that a mandatory cancellation decision under section 501(3A) is predicated on facts existing at the time the power is exercised and cannot be retrospectively vitiated by subsequent events. However, the court also noted that section 501CA(4) provides a mechanism for revocation where subsequent events, such as a reduction in sentence, may lead to a different assessment of character or constitute "another reason" for revocation. The court applied Ministerial Direction No. 90, which requires decision-makers to consider factors such as the length of time the non-citizen has lived in Australia and the nature of their conduct.

Ultimately, the court found that while the original cancellation decision was valid at the time it was made, the subsequent reduction of the Applicant's sentence, coupled with his long residence in Australia and the evidence of his fragile mental health and family connections, constituted "another reason" to revoke the cancellation under section 501CA(4). The court set aside the original decision and substituted it with a decision that the cancellation of the Applicant's visa be revoked.