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

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) regarding a visa refusal. The applicant, Mr Hettiarachchi, had failed to pass the character test, leading to a visa refusal. The core of the dispute revolved around whether there was "another reason" why the visa cancellation should be revoked, as contemplated by Ministerial Direction No. 90.

The Tribunal was required to determine the weight to be given to various considerations under Ministerial Direction No. 90, including the nature and seriousness of the applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the expectations of the Australian community, and any impediments to removal. The Tribunal also had to consider the impact of a refusal on the applicant's partner and assess the applicant's claims of rehabilitation.

The Tribunal's reasoning acknowledged the seriousness of the applicant's offending conduct, which included an assault and repeated traffic offences, including drink-driving. It found that these offences, particularly the violent assault and the potential for serious harm from the traffic offences, weighed against the applicant. However, the Tribunal also had regard to evidence suggesting a low risk of reoffending, including reports from a psychologist and the applicant's engagement in rehabilitation programs. Crucially, the Tribunal found that while the offending conduct was serious, the low risk of reoffending meant it only weighed marginally against the applicant. The Tribunal also considered the expectations of the Australian community that non-citizens obey the law, noting the repeated nature of the applicant's offences suggested a disregard for Australian law. Despite these considerations, the Tribunal ultimately found that the discretion to refuse the application under section 501 of the Migration Act 1958 (Cth) should not be exercised. The Tribunal set aside the decision under review and substituted its own decision, finding that the discretion to refuse the visa was not exercised.