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

This matter concerned an application by HLXZ (the applicant) to the Administrative Appeals Tribunal (the Tribunal) seeking revocation of the mandatory cancellation of his visa. The cancellation was based on the applicant failing to pass the character test due to an extensive criminal record, including offences such as kidnapping for ransom, importing and exporting marketable quantities of controlled drugs, possessing dangerous drugs, escaping police custody, and possessing an unregistered firearm. The Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) opposed the revocation.

The Tribunal was required to determine whether there was another reason why the cancellation of the applicant's visa should be revoked, having regard to Ministerial Direction No. 99. This involved considering the nature and seriousness of the applicant's offending conduct, the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the best interests of any minor children, the expectations of the Australian community, and any impediments to removal. The Tribunal also had to consider the weight to be given to various factors, including the applicant's criminal history, particularly offences committed as a juvenile.

The Tribunal reasoned that while decision-makers are bound to consider the matters set out in Ministerial Direction No. 99, they are not limited to those considerations and are not bound by a formulaic approach. The Direction provides guidance on the relative weight of considerations, but the ultimate weight to be given to any particular matter is for the decision-maker to determine based on the evidence in the individual case. The Tribunal noted the applicant's extensive criminal history, which commenced in his youth. It also acknowledged the relevance of the High Court's decision in *Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton*, which highlighted the importance of considering the effect of state legislation, such as the *Youth Justice Act 1992* (Qld), on whether juvenile offences should be taken into account. The Tribunal found that the protection of the Australian community from serious criminal conduct was a paramount consideration.

Having regard to all the material before it, the Tribunal was satisfied that the correct and preferable decision was not to revoke the cancellation of the applicant's visa. Accordingly, the Tribunal affirmed the decision under review.