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

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa under section 501(2) of the *Migration Act 1958* (Cth) on the grounds that the applicant did not pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to cancel the visa should be exercised, considering Ministerial Direction No. 99.

The Tribunal was tasked with determining the weight to be given to various considerations under Ministerial Direction No. 99, including the primary consideration of protecting the Australian community from criminal or other serious conduct, and the nature and seriousness of the applicant's offending conduct. Additionally, the Tribunal had to consider the best interests of minor children in Australia affected by the decision, and other non-exhaustive considerations such as the legal consequences of the decision, the extent of impediments if removed, the impact on victims, and the impact on Australian business interests.

The Tribunal found that while the applicant's offending conduct, which included family violence and a violent attack on a child, was viewed very seriously and weighed against the exercise of discretion, the best interests of Child X were a significant factor favouring the exercise of discretion in favour of the applicant. Evidence indicated that Child X had suffered significant harm and neglect while in the care of his mother and was in a stable and supportive environment with the applicant, who was actively meeting his physical and emotional needs and engaging with his education and healthcare. The Tribunal noted that if the applicant did not care for Child X, the child would likely remain homeless.

The Tribunal set aside the decision under review and substituted a new decision to not cancel the applicant's visa.