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

The Administrative Appeals Tribunal reviewed a decision to refuse to revoke the mandatory cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa. The cancellation was made under section 501(3A) of the *Migration Act 1958* due to the applicant failing to pass the character test, specifically because he had a substantial criminal record. The applicant sought review of the refusal to revoke the visa cancellation.

The Tribunal was required to determine whether the discretion to refuse to grant the visa should be exercised, considering Ministerial Direction No. 90. This involved assessing the primary and other considerations outlined in the Direction, particularly the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the applicant's links to the Australian community. The Tribunal also had to apply the principles set out in paragraph 5.2 of the Direction, which address Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that those with serious character concerns will be refused entry or have their visas cancelled.

The Tribunal reasoned that while the applicant had a history of driving offences and two convictions for assaulting police, which are serious matters, it was necessary to weigh these against other considerations. The Direction mandates that primary considerations generally be given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations. The Tribunal considered the applicant's long period of residence in Australia since 1994, his family ties, and his efforts to engage in lawful employment, despite a work-related injury. The Tribunal found that the applicant's offending, while serious, did not reach the threshold where even strong countervailing considerations would be insufficient to justify revoking the cancellation.

The Tribunal set aside the decision under review and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.