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

This matter concerned an application by the Applicant to revoke the mandatory cancellation of his visa, which had been cancelled under section 501(2) of the *Migration Act 1958* (Cth) because he did not pass the character test. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The decision was made by a delegate of the Minister.

The legal issues before the court were whether there was a discretion not to exercise the power to revoke the cancellation of the Applicant's visa, and if so, whether that discretion should be exercised. This required consideration of Ministerial Direction No. 90, which outlines the primary and other considerations to be taken into account when exercising such a discretion. The Applicant had a significant history of offending, including serious violent offences, drug-related offending, and domestic violence, and also suffered from diagnosed paranoid schizophrenia, antisocial personality disorder, and polysubstance abuse.

The court reasoned that while the Applicant did not pass the character test, the discretion to revoke the cancellation could be exercised if there was "another reason" to do so, as outlined in Ministerial Direction No. 90. The court weighed the primary considerations, which weighed heavily against revocation due to the Applicant's extensive and serious offending history and the significant risk of reoffending and harm to the community if the visa cancellation were revoked. The court also considered the "other considerations" including international non-refoulement obligations (not relevant), impediments to removal (neutral), impact on victims (moderate weight against revocation), and links to the Australian community (some weight against revocation).

Ultimately, the court found that a comprehensive and integrated view of all the considerations favoured non-revocation of the decision to cancel the Applicant's visa. The court concluded that there was no sufficient reason to exercise the discretion to revoke the mandatory cancellation.