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

This matter concerned an application by GMDN for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because GMDN did not pass the character test due to having a substantial criminal record under section 501(7)(c). The Administrative Appeals Tribunal had previously affirmed the delegate's decision not to revoke the cancellation, but this decision was set aside by the Federal Court and remitted for fresh consideration.

The Administrative Appeals Tribunal was required to determine whether the discretion under section 501CA of the *Migration Act 1958* to revoke the mandatory visa cancellation should be exercised. This involved considering various factors, including the protection of the Australian community, the best interests of GMDN's minor child who was the subject of children's proceedings, the strength, nature, and duration of GMDN's ties to Australia, and any impediments to his removal to Papua New Guinea. The Tribunal was also required to have regard to the considerations outlined in Direction No 79.

In its reasoning, the Tribunal considered the primary consideration of protecting the Australian community, noting GMDN's extensive criminal record, which included over 50 convictions for a variety of offences, including family violence, assault, property damage, drug trafficking, and theft. The Tribunal also considered the best interests of GMDN's minor child, acknowledging the ongoing children's proceedings in the ACT Childrens Court. The Tribunal weighed GMDN's ties to Australia against the risk he posed to the community and considered expert evidence regarding the "wantok" system in Papua New Guinea and GMDN's medical condition of atrial fibrillation.

The Tribunal set aside the decision under review.