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

This matter concerned an application by LYYZ (the applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his protection visa. The applicant, a citizen of Zimbabwe, had resided in Australia since 2008 and held a protection visa granted in 2011. He had a significant criminal history, including multiple driving offences, unlawful assault, theft, burglary, and contraventions of bail conditions, culminating in a sentence of three years imprisonment for dangerous driving causing serious injury and failing to stop after an accident.

The primary legal issue before the Tribunal was whether the decision in *BAL19* was applicable to the applicant's case, which would have precluded the mandatory cancellation of his protection visa. The Tribunal was required to determine if the reasoning in *BAL19*, which suggested that broad discretionary powers under section 501 of the *Migration Act 1958* (Cth) should not override more specific provisions like those for protection visas, applied to the mandatory cancellation provisions under section 501(3A). The Tribunal also considered whether the mandatory cancellation provisions were of a "broad discretionary nature" as contemplated in *BAL19*.

The Tribunal reasoned that the mandatory cancellation provisions under section 501(3A) were distinct in their subject matter and purpose from the broad discretionary powers discussed in *BAL19*. It found that the exercise of mandatory cancellation did not render section 36 of the Act, which sets out criteria for protection visas, without useful function. The Tribunal noted that section 501(3A) is not discretionary, but rather mandates cancellation upon the satisfaction of jurisdictional preconditions. Furthermore, the Tribunal referred to recent Full Federal Court decisions, including *Benrabah*, which, while not directly addressing *BAL19*, were finalised on the basis that mandatory cancellation provisions could be validly applied to protection visas.

Based on this reasoning, the Tribunal concluded that *BAL19* had no application to the circumstances of the case. Consequently, the Tribunal proceeded to consider the applicant's case on its merits, affirming the decision to not revoke the mandatory cancellation of the applicant's protection visa.