KHGY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by KHGY (the Applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' (the Minister) decision not to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test, leading to the mandatory cancellation of her visa. The central dispute revolved around whether there was "another reason" to revoke this cancellation, as permitted by section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether, in light of Ministerial Direction No. 79, there were sufficient grounds to exercise the discretion to revoke the mandatory visa cancellation. This involved assessing various primary and other considerations, including the protection of the Australian community, the Applicant's ties to Australia, the impact on her children, and the extent of impediments to her removal. The Tribunal also had to consider the weight to be given to the Applicant's criminal history and the risk of future offending, balanced against her personal circumstances and contributions to the Australian community.

In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 79, which guides decision-makers on the non-revocation of mandatory visa cancellations. The Tribunal found that while Primary Consideration A (protection of the Australian community) carried limited weight in favour of non-revocation, Primary Consideration B (ties to Australia) and Other Consideration (b) (strength, nature and duration of ties) weighed heavily in favour of revocation. Furthermore, Other Consideration (e) (extent of impediments if removed) weighed moderately in favour of revocation. The Tribunal concluded that these factors, when combined, outweighed Primary Consideration A, leading to the finding that there was another reason to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the Minister's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa, exercising the discretion afforded by section 501CA(4)(b)(ii) of the Act.