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

This matter concerned an application by FHND for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision not to revoke the mandatory cancellation of his visa. The dispute centred on whether there was "another reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) why the visa cancellation should be revoked. The Administrative Appeals Tribunal was required to determine if the circumstances, particularly a successful County Court appeal against a previous sentencing, constituted such a reason.

The legal issues before the Tribunal were twofold. Firstly, whether FHND's successful appeal to the County Court, which resulted in an aggregate sentence of less than 12 months imprisonment, meant that the original basis for the visa cancellation under section 501(3A) of the Act no longer existed. Secondly, if the original cancellation basis was still valid or if other factors were to be considered, whether there was "another reason" of sufficient weight to warrant the revocation of the visa cancellation, notwithstanding the primary considerations of community protection and community expectations.

The Tribunal considered the evidence, including sentencing remarks from the Magistrates' Court and the County Court appeal outcome. It noted that the County Court had set aside the original sentence of 12 months imprisonment and imposed an aggregate sentence of 350 days, meaning the applicant was not sentenced to a term of imprisonment of 12 months or more as required for the mandatory cancellation under section 501(3A)(7)(c). However, the Tribunal found that despite this, the primary considerations of protecting the Australian community and the expectations of the Australian community weighed very substantially against revocation. These considerations outweighed the best interests of minor children, the strength of ties to Australia, and the impediments to removal.

Ultimately, the Tribunal affirmed the decision not to revoke the visa cancellation. It concluded that while the basis for the original cancellation may have been affected by the County Court appeal, the significant weight of the primary considerations against revocation meant there was no "another reason" of sufficient significance to justify revoking the cancellation.