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

This matter concerned an application by Mr Ngatupuna to the Administrative Appeals Tribunal (AAT) seeking revocation of the mandatory cancellation of his visa. The cancellation was based on Mr Ngatupuna failing to pass the character test. The Tribunal was required to determine whether there was "another reason" why the visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth).

The legal issues before the Tribunal were to assess the weight to be given to various considerations under Ministerial Direction 90 (MD90), which governs decisions on visa cancellations. Specifically, the Tribunal had to consider the "primary" and "other" considerations outlined in MD90, including the protection of the Australian community, the nature and seriousness of offending conduct, the risk of reoffending, family violence, the best interests of minor children, community expectations, impediments to removal, and links to the Australian community. A key question was whether "other" considerations could, in appropriate circumstances, outweigh the "primary" considerations.

The Tribunal reasoned that while primary considerations are generally afforded greater weight, this is not an absolute rule. Drawing on established case law, including *Suleiman v Minister for Immigration and Border Protection* and subsequent Federal Court decisions, the Tribunal affirmed that "other" considerations can, in specific circumstances, be given equal or greater weight than primary considerations. The Tribunal noted that MD90, like its predecessor Ministerial Direction 65, requires decision-makers to consider all prescribed matters, but also allows for the consideration of other relevant matters. The Tribunal's task was to determine if the cancellation was the "correct or preferable" decision based on the evidence before it, standing in the shoes of the Minister. The Tribunal ultimately affirmed the visa cancellation, finding that the applicant's offending conduct weighed significantly against revocation.