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

This matter concerned the mandatory cancellation of the applicant's (FHHM) visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record. The applicant sought to have the cancellation revoked. The decision was made by K Millar SM in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the discretion to revoke the mandatory visa cancellation should be exercised, and in doing so, what weight should be given to the primary and other considerations outlined in Direction No. 79. Specifically, the Tribunal was required to assess the nature and seriousness of the applicant's conduct, the cumulative effect of his reoffending, the risk to the Australian community, the best interests of his minor children, the expectations of the Australian community, and other considerations such as the strength and duration of his ties to Australia and the impediments to his removal.

The Tribunal reasoned that while primary considerations generally carry greater weight, other considerations can outweigh them in particular circumstances. The Tribunal noted that the applicant had been convicted of serious violent offences, including unlawful assault in aggravated circumstances and grievous bodily harm, which generally warrant forfeiture of the privilege to remain in Australia. However, it also acknowledged that the applicant had lived in Australia for 21 years since arriving as a child, had made positive contributions to the community through work and volunteering, and had minor children and extended family in Australia. The Tribunal considered these latter factors as potentially affording a higher level of tolerance for his conduct.

The Tribunal affirmed the decision to cancel the applicant's visa.