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

This matter concerned an application by MWCW (the applicant) to the Administrative Appeals Tribunal (the Tribunal) seeking to revoke the mandatory cancellation of their Class TY Subclass 444 Special Category (Temporary) visa. The cancellation had been initiated because the applicant did not pass the character test. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) had decided not to revoke the cancellation.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by the *Migration Act 1958* (Cth). This required the Tribunal to consider and apply Ministerial Direction No 79, which sets out the framework for assessing such matters, particularly focusing on the protection of the Australian community and the best interests of minor children. The Tribunal was required to weigh the seriousness of the applicant's conduct against any mitigating factors and the potential impact of revocation on the community and any children involved.

In its reasoning, the Tribunal examined the applicant's criminal history, which was extensive and included convictions for serious offences. The Tribunal considered the principles outlined in Primary Consideration A of Ministerial Direction No 79, which emphasises the government's commitment to protecting the Australian community from harm. It noted that the mandatory cancellation of a visa without notice for certain non-citizen prisoners is consistent with the expectation that non-citizens will be law-abiding. The Tribunal also considered the risk to the Australian community should the applicant re-offend. Despite submissions from the applicant, the Tribunal found that the nature and seriousness of the applicant's conduct, as evidenced by their criminal history, weighed heavily against revocation.

Consequently, the Tribunal affirmed the decision of the respondent's delegate not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that it could not exercise the discretion to revoke the cancellation, as there was no "another reason" to do so that would outweigh the factors favouring the cancellation.