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

This matter concerned an application by DWHX to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant's visa under section 501(2) of the *Migration Act 1958* (Cth). The applicant had been convicted in 2002 of eight counts of incest-based paedophilia, leading to the assumption that he did not pass the character test. The central dispute revolved around whether there was "another reason" for the cancellation decision to be revoked, particularly in light of the exercise of discretion under Direction 90.

The court was required to determine the weight to be given to various considerations in assessing whether to revoke the visa cancellation. Specifically, the court had to weigh the seriousness of the applicant's past offending against factors such as the very low risk of reoffending, his otherwise insignificant criminal record, and his significant ties to Australia. The court also had to consider the impact of a revocation decision on the applicant and his extended family in Australia.

In reaching its decision, the court applied the principles outlined in Direction 90, acknowledging that while primary considerations are generally afforded more weight, other considerations can outweigh them in appropriate circumstances. The court found that the applicant's two decades of offence-free living provided strong support for a very low risk of recidivism. While acknowledging the extreme gravity of the offending, the court considered the context of a disorder from which the applicant was suffering at the time, and concluded that the risk of harm to the Australian community was very low. The court also took into account the severely dislocating effect that removal would have on the applicant and his family.

On balance, the court determined that the considerations favoured a decision not to exercise the discretion to cancel the applicant's visa. Accordingly, the court set aside the decision under review and substituted a decision that the applicant's visa not be revoked under section 501(2) of the *Migration Act 1958* (Cth).