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

This matter concerned an application by CMTK for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to mandatorily cancel the applicant's Class BB Subclass 155 Five Year Return (Residence) visa under section 501(3A) of the *Migration Act 1958* (Cth) due to the applicant failing to pass the character test, having a substantial criminal record. The applicant sought the exercise of the discretion to revoke the visa cancellation under section 501CA(4) of the Act, with the decision being made by A Poljak SM.

The primary legal issues before the court were whether the discretion to revoke the visa cancellation should be exercised, specifically considering the applicant's ties to Australia and the best interests of minor children affected by the decision, in accordance with Ministerial Direction No. 99. The court was required to assess the strength, nature, and duration of the applicant's ties to Australia, giving considerable weight to residence during formative years and positive contributions, and to determine if revocation was in the best interests of the applicant's minor children.

The court reasoned that the applicant's ties to Australia favoured revocation. Although the applicant spent his formative years in China, he arrived in Australia at age 22 and had since sought to establish a life through employment and by starting a family, including three young children born in Australia and regular contact with Australian citizen aunt and uncle. The applicant had also made positive contributions through his work. Regarding the best interests of minor children, the court noted the applicant's significant parental role prior to incarceration and his intention to resume this role, despite a period of no contact with his daughters due to his ex-wife's actions. The court accepted that it was in the daughters' best interests to resume a relationship with their father, and that this was more likely if he remained in Australia. The applicant's young son, also an Australian citizen, resided in Australia with his mother, and the applicant intended to resume a parental role with him.

The court set aside the decision under review and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.