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

This matter concerned an application to review the discretionary cancellation of the applicant's visa, following a failure to pass the character test due to a substantial criminal record. The applicant had been sentenced to 12 months or more imprisonment. The Tribunal was required to consider the principles outlined in Ministerial Direction 79, specifically the weight to be given to primary and other considerations when exercising the discretion to cancel the visa.

The central legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, having regard to the competing considerations under Ministerial Direction 79. This involved determining the weight to be afforded to the primary considerations, namely the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, in light of the applicant's criminal history and other relevant factors. The Tribunal also had to consider whether any "other considerations" were so significant as to warrant being treated as primary or of greatest weight.

The Tribunal reasoned that while the protection of the Australian community and the expectations of the Australian community weighed in favour of cancelling the visa, the best interests of the applicant's children weighed strongly against cancellation. The Tribunal found that the impact on Child 3, who had flourished in the applicant's care, and Child 5, who would lose direct contact with his father, were particularly significant. Furthermore, the Tribunal gave considerable weight to the secondary considerations, including the substantial adverse impact on 12 Australian citizens and permanent residents, the applicant's rehabilitation efforts, and his current pro-social lifestyle. In combination, these factors, particularly the best interests of the children and the secondary considerations, were found to outweigh the primary considerations favouring cancellation. The Tribunal therefore set aside the cancellation and substituted a decision not to cancel the visa.