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

This matter concerned an application by the Applicant, a New Zealand citizen, to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was initiated due to the Applicant failing to pass the character test, stemming from a serious criminal record. The Applicant sought to have the cancellation revoked, arguing there was "another reason" to do so, as contemplated by section 501CA(4)(b) of the *Migration Act 1958* (Cth). The decision was made by Illingworth SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether, despite the Applicant failing the character test due to her criminal history, there were sufficient "other reasons" to revoke the mandatory cancellation of her visa, as guided by Ministerial Direction 90. This required the Tribunal to weigh various primary and other considerations, including the protection of the Australian community, family violence, the best interests of minor children, expectations of the Australian community, international non-refoulement obligations, impediments to removal, impact on victims, links to the Australian community, and separation from her daughter's grave.

The Tribunal reasoned that while the Applicant's criminal conduct and the risk to the Australian community (Primary Considerations 1 and 2) weighed in favour of non-revocation, these were outweighed by other factors. Specifically, the Tribunal gave significant weight to the best interests of the Applicant's minor children (Primary Consideration 3), the extent of impediments to her removal (Other Consideration (b)), and her strong links to the Australian community (Other Consideration (d)). The Tribunal also noted the unique circumstances of the Applicant, including significant abuse suffered in her adolescence, which mitigated the weight given to the family violence considerations.

Ultimately, the Tribunal found that the combined weight of Primary Consideration 3 and Other Considerations (b), (d), and (e) favoured the revocation of the visa cancellation. Accordingly, the Tribunal ordered that the decision under review be set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant's visa.