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

The Administrative Appeals Tribunal considered the case of NTTH, a citizen of the Republic of Albania, whose Class BS Subclass 801 Partner visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to failing the character test. NTTH sought to have this cancellation revoked, but a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation. The Tribunal was asked to review this decision.

The primary legal issue before the Tribunal was whether the delegate erred in refusing to revoke the mandatory visa cancellation. This required the Tribunal to consider the application of Ministerial Direction No. 90, which sets out the criteria for assessing whether a person passes the character test and the factors to be weighed when considering revocation. Specifically, the Tribunal had to determine the weight to be given to considerations such as the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, community expectations, and international non-refoulement obligations, among others.

The Tribunal reasoned that Ministerial Direction No. 90, which was in force at the time of the delegate's decision, applied to the case, as NTTH had no accrued rights under the previous Ministerial Direction No. 79. The Tribunal noted NTTH's substantial criminal record, including convictions for drug offences, possession of firearms and prohibited weapons, and dealing in proceeds of crime, which led to sentences of imprisonment. The Tribunal weighed these factors against considerations such as NTTH's links to Australia, the impact on victims, and his international obligations. After cumulatively weighing all the considerations under Ministerial Direction No. 90, the Tribunal found that the decision under review was not the correct or preferable one.

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