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

This matter concerned an appeal by LHKG against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his visa. The dispute arose because LHKG failed to pass the character test, leading to the mandatory cancellation of his visa. The appeal was heard by Chris Puplick AM, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was another reason why LHKG's visa cancellation should be revoked, having regard to Ministerial Direction 90. This involved assessing various considerations, including the protection of the Australian community, family or domestic violence, the best interests of minor children, the expectations of the Australian community, non-refoulement obligations, impediments to removal, the reality of removal, the impact on victims, and the strength, nature, and duration of ties to Australia.

The Tribunal reasoned that while some considerations weighed against LHKG, such as protection of the Australian community and expectations of the Australian community, other considerations were significantly in his favour. Specifically, the Tribunal found that the best interests of his minor child and the impact on the victim (who was also his partner and an Indigenous Australian citizen) were of significant weight. The Tribunal also noted LHKG's international non-refoulement obligations and significant impediments if removed, as well as his own mental and physical health issues. Applying the principles established in cases such as *Suleiman*, the Tribunal affirmed that "other considerations" could, in appropriate circumstances, outweigh primary considerations. The Tribunal concluded that the best interests of the minor child and the impact on the victim, taken together, were sufficient to overbear all other negative considerations and support the revocation of the visa cancellation.

The Tribunal set aside the decision to cancel LHKG's visa and substituted a decision to revoke the cancellation.