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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of Iraq who arrived in Australia at age 19, had a substantial criminal record including drug offences, aggravated burglary, and breaches of family violence restraining orders. The review was heard by M Evans-Bonner SM in the General Division of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth); and second, if he did not pass the character test, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Act. The hearing was complicated by the High Court's decision in *NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs* and the Applicant's release from immigration detention on a Bridging (Removal Pending) visa shortly before the decision was due.

In reaching its decision, the Tribunal considered the primary and other considerations outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk to the community, family violence, the strength, nature, and duration of the Applicant's ties to Australia, and the best interests of his minor daughter. The Tribunal also considered the impact on victims and the legal consequences of the decision, particularly in light of the *NZYQ* decision and the Applicant's release on a bridging visa. After balancing these considerations, the Tribunal found that the primary consideration weighed against revoking the cancellation decision.

The Tribunal set aside the delegate's decision and substituted its own decision.