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

The case of *Moala and Minister for Immigration, Citizenship, and Multicultural Affairs* concerned an applicant seeking review of a decision to mandatorily cancel his Class BB Subclass 155 Five Year Resident Return visa. The applicant did not pass the character test due to serious offending, specifically drug and property offences for which he was sentenced to imprisonment. The Administrative Appeals Tribunal (AAT) was tasked with considering whether to revoke this mandatory cancellation.

The central legal issue before the AAT was the application of Ministerial Direction No. 90, which governs the exercise of powers under section 501 of the *Migration Act 1958* (Cth). Specifically, the Tribunal had to determine the weight to be given to the primary considerations, particularly the protection of the Australian community, and assess the seriousness of the applicant's conduct in light of the Direction's criteria. The Tribunal was required to balance the risk to the community against other relevant factors, including the applicant's personal circumstances and his rehabilitation prospects.

The AAT reasoned that while the applicant's offending was serious, particularly in relation to drug supply, it did not fall into the categories of conduct deemed "very serious" under paragraph 8.1.1(1)(a) of the Direction, such as violent or sexual crimes. The Tribunal noted that the applicant had demonstrated some efforts towards rehabilitation and had strong community ties in Australia, having arrived as an infant and having Australian citizen siblings and an Australian citizen mother. The Tribunal also considered the applicant's evidence of limited Tongan language and cultural familiarity, suggesting a lack of strong ties to Tonga. Applying the principles that primary considerations should generally be given more weight, but that one or more primary considerations may outweigh others, the Tribunal concluded that the circumstances warranted the revocation of the mandatory cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation and substituted a decision to revoke the cancellation of the applicant's visa.