FHXX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant's visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record. Following the expiry of his non-parole period, the applicant was transferred to immigration detention and subsequently made representations seeking revocation of the cancellation. After a significant delay, the delegate decided not to revoke the cancellation, prompting the applicant's appeal to the Tribunal.

The Tribunal was required to determine whether there was "another reason" why the decision not to revoke the visa cancellation should itself be revoked, in accordance with section 501CA(4) of the *Migration Act*. In making this determination, the Tribunal was bound to comply with Ministerial Direction No. 90, which outlines the principles and considerations to be applied in such cases. The central legal issue was the application of the Direction, particularly the weight to be given to various considerations, including the applicant's ties to Australia, impediments to removal, and the effect of his mental illness, in deciding whether to revoke the cancellation.

The Tribunal reasoned that while the applicant did not pass the character test due to his substantial criminal record, the discretion under section 501CA(4) allowed for revocation if there was another reason. Applying Ministerial Direction No. 90, the Tribunal considered the primary and other considerations relevant to the applicant's case. After a close examination of these factors, including evidence relating to the applicant's offending record and other circumstances, the Tribunal concluded that there was indeed another reason to revoke the original decision not to revoke the cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the cancellation of the applicant's visa, meaning his visa remained in force.