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

MCVN and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's Refugee (subclass 200) visa. The Applicant, a citizen of Eritrea who arrived in Australia at the age of 12, had his visa mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, having been sentenced to a term of imprisonment exceeding 12 months. The Applicant subsequently requested revocation of this cancellation, but the delegate refused, leading to the present review before the Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, as contemplated by section 501CA(4) of the Act. This required the Tribunal to consider the weight to be given to various considerations, including the protection of the Australian community from criminal or other serious conduct, and the nature and seriousness of the Applicant's offending history, in light of Ministerial Direction No. 79. The Tribunal was also required to determine the appropriate weight to be afforded to both primary and other considerations, as outlined in the Direction.

The Tribunal's reasoning emphasised the importance of treating "other" considerations as distinct from "secondary" ones, drawing on the principles established in *Suleiman v Minister for Immigration and Border Protection*. It was noted that Ministerial Direction No. 79 requires an evaluation of the weight to be given to all considerations, and that while primary considerations generally attract greater weight, "other" considerations are not automatically secondary and may, in specific circumstances, be afforded the greatest weight. The Tribunal considered the Applicant's criminal conduct, the risk to the Australian community, and the specific factors outlined in paragraph 13.1.1(1) of the Direction regarding the nature and seriousness of offending, such as the type of crimes, sentences imposed, frequency of offending, and any trend of increasing seriousness. The Tribunal also referred to the Full Federal Court's decision in *Khalil v Minister for Home Affairs* regarding the distinction between a decision and the reasons for that decision.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa.