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

This matter concerned an application for review of a decision to affirm the mandatory cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa under section 501CA(4) of the *Migration Act 1958* (Cth). The Applicant did not pass the character test due to having a substantial criminal record. The dispute before the court was whether the discretion to refuse to grant the visa should be exercised, considering Ministerial Direction No. 90 and the risk of harm to the Australian community. The decision was made by J Rau Sc SM.

The legal issues before the court were primarily the proper application of Ministerial Direction No. 90, specifically concerning the weight to be given to "primary" and "other" considerations. The court was required to determine how to assess the risk of harm to the Australian community, considering the nature and seriousness of the Applicant's past conduct and the potential for future offending. This involved interpreting the Direction's guidance on treating "other" considerations as primary in certain circumstances, and the specific factors to be regarded when assessing the seriousness of conduct, including violent and sexual crimes, and acts of family violence.

The court reasoned that the Ministerial Direction requires an evaluation of the appropriate weight to be given to both primary and other considerations, noting that "other" considerations are not necessarily secondary. It was held that while primary considerations are generally given greater weight, an inquiry is necessary to determine if an "other" consideration should be afforded the greatest weight in specific circumstances. In applying this to the Applicant's case, the court found that the proper application of the Direction favoured the Tribunal not exercising the discretion to revoke the cancellation of the visa, concluding there was no "another reason" pursuant to s501CA(4)(b)(ii) to revoke the original decision.

The decision under review was affirmed.