FNSM and Minister for Home Affairs (Migration)

This matter concerned an application by FNSM for the revocation of a mandatory visa cancellation decision made by the Minister for Home Affairs. The applicant had failed to pass the character test due to a substantial criminal record. The dispute before the Administrative Appeals Tribunal (AAT) was whether there was "another reason" why the mandatory cancellation decision should be revoked, requiring the Tribunal to consider the applicant's circumstances in light of Direction No. 79.

The Tribunal was required to determine whether to exercise its discretion to set aside the delegate's decision to cancel the applicant's visa. This involved assessing whether the applicant posed a risk of harm to the Australian community and whether there was any risk of future criminal conduct. The Tribunal was directed to consider the primary considerations outlined in Direction No. 79, including the protection of the Australian community, the expectations of the Australian community, and other considerations such as international non-refoulement obligations, the strength of the applicant's ties to Australia, and the impediments to removal.

In its reasoning, the Tribunal applied the principles set out in Direction No. 79, particularly concerning the protection of the Australian community. It noted that remaining in Australia is a privilege contingent on law-abiding behaviour. The Tribunal considered the nature and seriousness of the applicant's past conduct, which included larceny, fraud, and a violent crime of a sexual nature, noting that this offending was linked to his psychiatric condition and alcohol abuse. Despite the seriousness of the past offending, the Tribunal ultimately found that there was another reason to revoke the mandatory visa cancellation decision, leading to the decision under review being set aside.