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

This matter concerned an application for review of a mandatory visa cancellation decision made under section 501(3A) of the *Migration Act 1958* (Cth). The applicant contended that the Tribunal lacked jurisdiction to consider the review, while the respondent maintained that it did. The case was heard by Senior Member N A Manetta SM of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether it possessed jurisdiction to hear the application for review, and if so, whether there was "another reason" to revoke the visa cancellation decision. This involved determining the proper application of section 501(3A) and section 501CA(4)(b)(ii) of the Act, as well as considering the principles established in relevant case law, including *Pearson*, *Ketjan*, and *XJLR*, concerning the enlivening of mandatory cancellation and the effect of an invalid initial cancellation decision on the review jurisdiction.

The Tribunal found that it did have jurisdiction. It accepted that under *Ketjan*, a decision-maker applying section 501(3A) is not limited to considering the current term of imprisonment being served but may also consider past sentences, including suspended sentences of at least 12 months, to found jurisdiction. The Tribunal then proceeded to weigh the various considerations under Direction No. 90. While acknowledging the extreme seriousness of the applicant's offending, including home invasion and violent crime, and the community expectations, the Tribunal found that the risk of recidivism was low. Significant weight was given to the interests of the applicant's minor child, H, and to a lesser extent, the interests of the fiancée's children, and the prospective relationship that could develop.

Ultimately, the Tribunal concluded that there was "another reason" for the cancellation decision to be revoked, finding that the interests of the child and the low risk of recidivism, when weighed against the seriousness of the offending, favoured revocation. Accordingly, the Tribunal set aside the decision under review and substituted a decision revoking the cancellation of the applicant's visa.