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

This matter concerned the mandatory cancellation of the Applicant's Partner (Subclass 801) (Residence) visa due to his substantial criminal record. The Applicant had been convicted of unlawful wounding and participating in a syndicate that arranged the unlawful importation of looseleaf tobacco, for which he received a sentence of three years imprisonment. The core dispute revolved around whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (AAT) heard the case following a remittal from the Federal Court.

The legal issues before the Tribunal were whether the Applicant passed the character test, or alternatively, if there was another reason to revoke the visa cancellation decision. In assessing these issues, the Tribunal was required to consider the primary considerations outlined in Direction 99, including the protection of the Australian community, the best interests of minor children, and ties to Australia, as well as the legal consequences and extent of impediments if removed. The Tribunal had to weigh these considerations against each other, giving greater weight to primary considerations.

The Tribunal reasoned that while the Applicant's criminal conduct, including the unlawful wounding and the significant tobacco importation offences, weighed heavily against him, there were compelling countervailing factors. These included the best interests of his two young daughters, who relied on him for emotional support and whose well-being was demonstrably affected by his detention, with the eldest daughter experiencing thoughts of self-harm. The Tribunal also considered the Applicant's established ties to Australia, his remorse, and the significant impediments to his removal, including the impact on his daughters and their temporary custodians. The Tribunal concluded that these factors, taken together, constituted "another reason" why the original decision to cancel the visa should be revoked.

Consequently, the Tribunal set aside the decision not to revoke the mandatory cancellation and substituted a new decision to revoke the cancellation.