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

The applicant, Mr. Chukwuma, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to mandatorily cancel his Class BB Subclass 155 Five Year Return visa under section 501(3A) of the *Migration Act 1958* (Cth). The cancellation was based on Mr. Chukwuma failing to pass the character test due to having a substantial criminal record. The primary dispute concerned whether the discretion to revoke this cancellation under section 501CA(4) of the Act should have been exercised in his favour. The matter was heard by Senior Member J Rau of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the delegate of the Minister had erred in exercising the discretion under section 501CA(4) by failing to revoke the mandatory visa cancellation. This involved considering whether the delegate had properly taken into account all relevant considerations, including the potential for indefinite detention, and had given appropriate weight to the factors outlined in Ministerial Direction No. 90. The core legal issue was the proper application of the character provisions and the associated discretionary powers within the *Migration Act*.

In its reasoning, the Tribunal found that the delegate had failed to adequately consider the implications of indefinite detention for Mr. Chukwuma, a factor of significant weight. Furthermore, the Tribunal concluded that the delegate had not properly applied the principles set out in Ministerial Direction No. 90, particularly concerning the assessment of risk and the applicant's rehabilitation. Consequently, the Tribunal determined that the decision to refuse to revoke the visa cancellation was affected by jurisdictional error. The Tribunal set aside the delegate's decision and substituted it with a decision that the cancellation of Mr. Chukwuma's visa be revoked.