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

This matter concerned an appeal by Mr Nunez against a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the mandatory cancellation of his visa. The Minister for Immigration, Citizenship and Multicultural Affairs had cancelled Mr Nunez's visa under section 501 of the *Migration Act 1958* (Cth) because he failed to pass the character test. The central dispute revolved around whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by the legislation and guided by Ministerial Direction No. 99.

The legal issues before the court were whether the Tribunal had erred in its application of Ministerial Direction No. 99 when considering the revocation of the mandatory visa cancellation. Specifically, the court was required to determine if the Tribunal had correctly balanced the various considerations outlined in the Direction, including the protection of the Australian community, the strength and nature of the applicant's ties to Australia, the best interests of any minor children, and the expectations of the Australian community, against the seriousness of the applicant's conduct and the impediments to his removal.

The court affirmed that while decision-makers are bound to consider the matters set out in Ministerial Direction No. 99, they are not limited to those considerations. The Direction provides guidance on the relative weight of considerations but does not prescribe a formulaic approach. The decision-maker retains the obligation to examine the merits of the case and decide for themselves, giving appropriate weight to each matter based on the specific evidence. The court noted that the applicant's extensive criminal history, including numerous driving offences, breaches of domestic violence orders, and threats of violence, weighed heavily against revocation. The Tribunal's assessment of the applicant's conduct and the risk to the Australian community was found to be a reasonable evaluative judgment.

The Tribunal's decision to affirm the mandatory visa cancellation was upheld.