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

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's Partner Visa (Class BC) (Subclass 100). The visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because the Applicant did not pass the character test, having a substantial criminal record and serving a period of imprisonment. The Applicant sought revocation of this cancellation, which was refused by a delegate of the Minister. The Tribunal's jurisdiction to review this refusal arose under section 500(1)(ba) of the Act.

The primary legal issue before the Tribunal was to determine the appropriate weight to be given to various considerations when assessing whether to revoke the visa cancellation. This involved evaluating both primary considerations, such as the protection of the Australian community from harm, and other considerations, including the Applicant's personal circumstances, his rehabilitation efforts, and the potential detriments of his removal to Papua New Guinea. The Tribunal was required to consider the nature and seriousness of the Applicant's conduct, the risk of future offending, and the evidence presented by witnesses regarding his character and potential difficulties upon return to his country of origin.

The Tribunal applied the principles outlined in Ministerial Directions, specifically concerning the evaluation of primary and other considerations. It noted that while primary considerations generally warrant greater weight, other considerations are not automatically secondary and may, in specific circumstances, be afforded the greatest weight. The Tribunal considered evidence from the Applicant's partner and other witnesses, including Ms RJ and Mr JK, who described the Applicant as a caring and helpful individual, and highlighted his childhood traumas and struggles with alcoholism. The Tribunal also examined the Applicant's rehabilitation following a serious car accident and his efforts to address his issues. The Tribunal's reasoning focused on balancing the seriousness of the Applicant's past conduct against his demonstrated efforts at rehabilitation and the potential negative consequences of his removal from Australia.

The Tribunal set aside the delegate's decision and substituted a new decision. It found that the Applicant's circumstances warranted the revocation of the visa cancellation, meaning the Applicant's visa would no longer be cancelled.