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

This matter concerned an application for judicial review of a decision to affirm the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The Applicant had failed to pass the character test due to past offending. The central dispute revolved around whether there was "another reason" to revoke the mandatory cancellation, considering Ministerial Direction No. 90.

The court was required to determine the weight to be given to various primary and other considerations under Ministerial Direction No. 90, particularly in light of the Applicant's history of offending, his ties to the Australian community, and the best interests of his minor children. Specifically, the court had to assess whether the Applicant's circumstances, including his role as a primary caregiver and the potential impact of his removal on his children, constituted sufficient grounds to outweigh the mandatory cancellation of his visa.

The court reasoned that while the Applicant's links to the Australian community warranted substantial weight in favour of non-revocation, Primary Consideration 1, relating to the risk of further offending, was determinative. The court found an unacceptable and real risk of the Applicant re-offending in a manner similar to his past conduct against Ms P, which was described as abhorrent and sustained. This, along with Primary Consideration 4, weighed heavily against revocation. Ultimately, the court concluded that the considerations favouring revocation did not outweigh those favouring non-revocation, and therefore, the discretion to revoke the cancellation could not be exercised. The decision under review was affirmed.