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

The applicant, McQuade, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of her Class BC Subclass 100 Partner (Migrant) visa. The visa had been cancelled under s 501(2) of the *Migration Act 1958* (Cth) due to the applicant failing to pass the character test, specifically by having a substantial criminal record. The matter was heard by Griffin SM in the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether the Minister’s decision to refuse revocation of the visa cancellation was affected by jurisdictional error. This required the Tribunal to consider whether the Minister, in applying Ministerial Direction No. 90, had adequately and properly considered the prescribed primary and other considerations, including the protection of the Australian community, the seriousness of the offending and future risk, family violence, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to assess the weight given to other considerations, such as the extent of impediments if removed, emotional effects, impact on victims, and the strength, nature, and duration of the applicant's ties to Australia.

Griffin SM found that the delegate had failed to give sufficient weight to the best interests of the applicant's minor children in Australia and the strength and nature of her ties to Australia. The delegate's assessment of these considerations was found to be superficial and lacking in the depth required by Ministerial Direction No. 90. Consequently, the Tribunal concluded that the decision to refuse revocation was affected by jurisdictional error. The Tribunal set aside the decision under review and substituted a new decision to revoke the mandatory cancellation of the applicant's visa.