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

This matter concerned an application to review the cancellation of a Class AH Subclass 117 Child (Migrant) Visa held by the Applicant. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had cancelled the visa on the basis that the Applicant did not pass the character test. The Deputy President of the Administrative Appeals Tribunal was required to determine whether the discretion to cancel the visa should be exercised.

The central legal issue before the Tribunal was the appropriate weight to be given to various considerations, particularly in light of Ministerial Direction No. 90, when deciding whether to revoke a mandatory visa cancellation. This involved assessing the Applicant's criminal conduct, the risk to the Australian community, and the expectations of the Australian community, balanced against other considerations such as the Applicant's personal circumstances and potential non-refoulement obligations. The Tribunal had to determine how to apply the Direction's guidance on giving "appropriate weight" to both primary and other considerations, and whether any "other considerations" should be afforded the greatest weight in the particular circumstances of the case.

The Tribunal reasoned that while the protection and expectations of the Australian community weighed heavily in favour of revoking the Applicant's visa, the Applicant had demonstrated significant improvement in his behaviour while remaining in the community. The Tribunal noted that the Applicant had availed himself of opportunities to improve and that this tipped the balance in favour of non-revocation. The Tribunal applied the principles from cases such as *Suleiman v Minister for Immigration and Border Protection* regarding the appropriate weight of primary and other considerations under the Ministerial Direction.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to exercise the discretion under s 501(2) of the *Migration Act 1958* (Cth) to cancel the Applicant's visa. The Tribunal cautioned the Applicant that reoffending would make it highly unlikely that he would retain the right to remain in Australia.