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

This matter concerned an application to the Administrative Appeals Tribunal for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant had failed to pass the character test due to a lengthy criminal history, including acts of family violence against multiple victims. The Tribunal was tasked with determining whether there was another reason to revoke the mandatory cancellation decision, notwithstanding the Applicant's failure to meet the character test.

The primary legal issue before the Tribunal was whether, under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), there was "another reason" to revoke the mandatory cancellation of the Applicant's visa. This required the Tribunal to consider the relevant Ministerial Direction, specifically Direction No. 99, which outlines the framework for assessing such matters. The Direction mandates consideration of the protection of the Australian community, the nature and seriousness of the non-citizen's conduct, and the risk of reoffending, alongside other considerations such as legal consequences, impediments to removal, and impact on victims and community interests.

The Tribunal reasoned that while the Applicant's criminal history, including acts of family violence, was serious and weighed heavily against revocation, there were significant protective factors in the community. These included the Applicant's ties to Australia, the interests of minor children, impediments to his return to his country of origin, and the potential impact on victims. The Tribunal found that these protective factors, when balanced against the seriousness of his offending and the risk of reoffending, moderated the risk to the Australian community. Consequently, the Tribunal concluded that these factors, combined with the protection and expectations of the Australian community, were outweighed by the Applicant's community ties and other mitigating circumstances, constituting "another reason" to revoke the mandatory cancellation.

The Tribunal set aside the delegate's decision not to revoke the mandatory cancellation and substituted a decision to revoke the mandatory cancellation of the Applicant's visa.