Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Davies, who sought to have the mandatory cancellation of her visa revoked. The dispute arose because Ms. Davies did not pass the character test due to a substantial criminal record, leading to the cancellation of her visa under section 501(3A) of the *Migration Act 1958* (Cth). The Tribunal was tasked with determining whether there was another reason why the original decision to cancel her visa should be revoked under section 501CA(4) of the Act.

The Tribunal was required to assess whether the discretion to revoke the visa cancellation should be exercised, having regard to Ministerial Direction No. 99. This involved considering various factors, including the nature and seriousness of Ms. Davies' conduct, the risk to the Australian community, and the strength of her ties to Australia. A key principle guiding the Tribunal's decision was the expectation that non-citizens who have lived in the Australian community for most of their lives, particularly from a young age, may be afforded a higher level of tolerance for criminal or serious conduct.

In its reasoning, the Tribunal acknowledged Ms. Davies' substantial criminal record, including a conviction for a serious offence. However, it placed significant weight on the fact that Ms. Davies arrived in Australia as a young child and had resided in the country for the vast majority of her life. The Tribunal found that her strong links to the Australian community were a decisive factor in exercising its discretion. Consequently, the Tribunal ordered that the decision under review be set aside.