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

This matter concerned an application by the Applicant, Ng, to review the mandatory cancellation of her visa under section 501(3A) of the *Migration Act 1958* (Cth). The Minister for Immigration, Citizenship and Multicultural Affairs had cancelled the Applicant's visa on the grounds that she did not pass the character test. The Applicant sought to argue that there was "another reason" to revoke the cancellation, a consideration guided by Direction No. 99. The decision was made by the Hon. John Pascoe AC CVO, Deputy President, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, notwithstanding the Applicant's failure to pass the character test. This required the Tribunal to consider the factors outlined in Direction No. 99, specifically the protection of the Australian community, the strength, nature and duration of ties to Australia, the expectations of the Australian community, and the legal consequences of the decision, including the extent of impediments if removed.

The Tribunal considered the Applicant's serious offending, which included drug-related offences committed shortly after her arrival in Australia and continued while on bail and parole. However, it also took into account the Applicant's evidence regarding her struggles to access rehabilitation programs, both in prison and in the community, and her expressed remorse and desire to cease drug use. The Tribunal noted the Applicant's limited insight into her offending, attributed partly to substance abuse and gender dysphoria, and the low to medium risk of reoffending, primarily drug-related. Crucially, the Tribunal identified the Applicant's mother as a significant protective factor, her strong desire to support the Applicant's rehabilitation, and the Applicant's concern about her family's disapproval and lack of support if returned to Malaysia. The Tribunal concluded that these factors, particularly the potential for successful rehabilitation with strong community support and the significant impediments to her return to Malaysia, constituted "another reason" to revoke the visa cancellation.

The Tribunal set aside the decision to cancel the Applicant's visa and substituted a decision to revoke the cancellation.