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

This matter concerned an application by the Applicant, Mr Eswaran, for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Skilled – Nominated visa (Class SN Subclass 190). The Applicant did not pass the character test, leading to the mandatory cancellation of his visa. The review was heard by Rebecca Bellamy M.

The central legal issue before the court was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, as contemplated by section 501CA(4) of the Migration Act 1958 (Cth). This required the court to consider the application of Ministerial Direction No. 79, which outlines the primary and other considerations relevant to such a decision, including the protection of the Australian community, the Applicant's ties to Australia, and the impact of removal.

The court reasoned that while the Applicant's criminal conduct, including animal cruelty and firearms offences, weighed in favour of revocation of the visa cancellation, other factors also needed to be considered. Specifically, the court examined the strength and duration of the Applicant's ties to Australia and the extent of impediments to his removal. Ultimately, the court found that the combined weight of Primary Consideration B (protection of the Australian community) and Other Considerations (b) (strength, nature and duration of ties) and (e) (extent of impediments if removed) outweighed Primary Considerations A (protection of the Australian community) and C (impact on Australian business interests).

Consequently, the court determined that there was another reason to revoke the mandatory cancellation of the Applicant's visa. The decision under review was set aside and substituted, with the court exercising the discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation.