CNNS and Minister for Home Affairs (Migration)

This matter concerned an application for review of a mandatory visa cancellation decision made under section 501(3A) of the *Migration Act 1958* (Cth) concerning a Global Special Humanitarian (Subclass 202) visa holder who failed to pass the character test due to having a substantial criminal record. The applicant had been sentenced to 12 months or more imprisonment. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was another reason why the original decision to cancel the applicant's visa should be revoked.

The primary legal issue before the Tribunal was whether, under section 501CA(4)(b)(ii) of the Act, there was another reason to revoke the mandatory visa cancellation. This required the Tribunal to examine the factors for and against revocation, applying the principles set out in Ministerial Direction 65. The Tribunal considered the sovereign right of Australia to determine who may enter or remain, the expectation that serious offenders will be denied the privilege of remaining, and the varying levels of tolerance for criminal conduct depending on the applicant's ties to the Australian community.

The Tribunal reasoned that while the applicant's criminal offending triggered the mandatory cancellation, it was obliged to consider whether other factors warranted revocation. In doing so, it had to weigh the seriousness of the offending against considerations such as the applicant's length of residence in Australia and any consequences for minor children or immediate family members. The Tribunal's decision was informed by the principles in Ministerial Direction 65, which guide the assessment of whether countervailing considerations are sufficient to justify revoking a mandatory visa cancellation. The Tribunal ultimately set aside the original decision and substituted its own decision.