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

This matter concerned an appeal by the applicant, Francisco, against the mandatory cancellation of his visa on character grounds under section 501(3A) of the *Migration Act 1958* (Cth). The offending that led to the cancellation related to destruction of property and assault. The applicant sought to have the decision set aside and substituted, arguing that the discretion under Direction No. 79 should have been exercised in his favour.

The primary legal issues before the court were whether the Minister, in exercising the discretion under Direction No. 79, had adequately considered the "primary considerations" of the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. Specifically, the court had to determine if the weight given to the applicant's long-standing ties to Australia, his rehabilitation efforts, the low likelihood of reoffending, and the significant impact of his deportation on his multiple minor children and extended family, was sufficient to outweigh the protection of the Australian community.

The court reasoned that while the protection of the Australian community is a paramount consideration, the applicant had demonstrated significant rehabilitation and a low likelihood of reoffending, particularly in light of his cessation of drug use. The court placed considerable weight on the applicant's extensive ties to Australia, having arrived as a child in 1986 and having lived there for most of his life, attending school and working as a qualified carpenter for many years. Furthermore, the court found that the best interests of the applicant's minor children, who would be significantly impacted by his removal, were a crucial factor. The court also noted the uncertainty of the applicant's future country of deportation and the impediments his removal would create for his parents' ability to visit him.

The Deputy President found that the decision to cancel the applicant's visa was not well-founded and set aside the original decision, substituting it with a decision to grant the visa.