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

This case concerned an application for review of a mandatory visa cancellation made under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, a citizen of New Zealand who had been ordinarily resident in Australia since 2006, did not pass the character test. The central dispute was whether there was "another reason" why the visa cancellation decision should be revoked, as permitted by section 501CA(4)(b)(ii) of the Act. The matter came before Deputy President Boyle of the Tribunal.

The legal issues before the Tribunal were whether the applicant's circumstances constituted "another reason" to revoke the mandatory visa cancellation, notwithstanding that she failed the character test. This required the Tribunal to consider the primary and other considerations outlined in Direction 79, particularly concerning the protection of the Australian community from criminal or other serious conduct. The Tribunal had to weigh the nature and seriousness of the applicant's conduct against the risk to the Australian community, as well as other factors such as the strength of her ties to Australia and the impediments she would face if removed.

The Tribunal reasoned that while the applicant did not pass the character test, and therefore could not rely on section 501CA(4)(b)(i), the discretion under section 501CA(4)(b)(ii) was available. Applying Direction 79, the Tribunal considered the applicant's criminal record, which included a conviction for driving under the influence in New Zealand and, more significantly, a conviction in Australia for grievous bodily harm by non-violent acts. However, the Tribunal also took into account evidence suggesting an extremely low risk of reoffending, the applicant's diligent management of her HIV status, her strong community ties in Australia, and the significant impediments she would face if removed, including fears for her mental health due to past trauma in New Zealand. The Tribunal concluded that these factors, when considered collectively, constituted "another reason" to revoke the cancellation.

Consequently, the Tribunal set aside the decision under review and substituted it with a decision that the cancellation of the applicant's visa pursuant to section 501(3A) of the *Migration Act 1958* (Cth) be revoked under section 501CA(4)(b)(ii) of the Act.