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

This matter concerned an application by Mr Finau for review of the Minister for Immigration, Citizenship, and Multicultural Affairs' decision to refuse to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Finau failing to pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether there was "another reason" why the original decision to cancel the visa should be revoked, having regard to the applicant's representations and Ministerial Direction No. 99.

The Tribunal was tasked with considering whether the discretion to revoke the visa cancellation under section 501CA(4) of the Migration Act 1958 (Cth) should be exercised. This involved assessing the applicant's representations and evidence in light of the principles and considerations outlined in Ministerial Direction No. 99. The core of the determination lay in weighing the applicant's circumstances against the mandatory character test requirements and the overarching policy considerations for granting or cancelling visas.

The Tribunal applied the principles of Ministerial Direction No. 99, which mandates consideration of both primary and "other" considerations. It noted that while primary considerations are generally given greater weight, "other" considerations, such as legal consequences, impediments to removal, and impact on victims, are not necessarily secondary and may, in certain circumstances, be afforded the greatest weight. The Tribunal found that Mr Finau possessed a substantial criminal record, meaning he did not pass the character test, and that the requirements of section 501CA(4)(b)(i) were not met. The Tribunal then considered whether there was "another reason" to revoke the cancellation, ultimately finding that the criteria for revocation were not satisfied.