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

This matter concerned an appeal by the applicant, Manuel, against the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the applicant failing to pass the character test due to having a substantial criminal record, as provided for under section 501(3A) of the *Migration Act 1958* (Cth). The central question before the court was whether there was another reason why the mandatory cancellation of the visa should be revoked.

The court was required to determine the legal issues surrounding the application of Direction 99, which governs the considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation. Specifically, the court had to assess the weight and relevance of various primary and other considerations outlined in Direction 99, including the best interests of minor children, the expectations of the Australian community, and the protection of the Australian community from criminal conduct. The court also had to consider the Tribunal's obligation to apply the current Direction 99, even though the original decision may have been made under a previous direction.

In its reasoning, the court applied the principles of Direction 99, which mandates that primary considerations, such as the best interests of minor children and community expectations, are generally given greater weight than other considerations. The court found that the non-revocation of the visa cancellation would have a significant adverse impact on the applicant's children, weighing heavily in favour of revocation. While acknowledging the respondent's submission regarding community expectations concerning serious criminal conduct, the court interpreted the relevant provisions of Direction 99 and ultimately concluded that the best interests of the children constituted a significant reason to revoke the cancellation decision.

The court ordered that the decision to cancel the applicant's visa be set aside and substituted with a decision to revoke the cancellation.