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

The applicant, PKVJ, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to affirm the cancellation of his visa. The visa cancellation was based on PKVJ failing to pass the character test due to a conviction for wounding a person with intent to cause grievous bodily harm, and a long history of criminal and violent offending. The central dispute concerned whether there was "another reason" why the visa cancellation should be revoked, as contemplated by the relevant provisions of the Migration Act 1958 (Cth) and Ministerial Direction No. 99. The matter was heard by Deputy President Antoinette Younes.

The court was required to determine the weight to be given to various considerations under Ministerial Direction No. 99 when assessing whether to revoke a mandatory visa cancellation. Specifically, the court had to consider the nature and seriousness of the offending conduct, the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the best interests of any minor children, the expectations of the Australian community, and any impediments to removal. A key legal issue was how to interpret phrases within the Direction, such as "should generally be given greater weight," and whether a decision-maker was bound by a formulaic approach or had discretion to adopt a different approach based on the specific facts of a case. The court also had to consider the High Court's decision in *Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton*, which addressed the treatment of juvenile offending for the purposes of character assessments.

The Deputy President reasoned that the weight given to any particular matter is a discretionary judgment for the decision-maker and cannot be subjected to a rigid, formulaic application. The phrases within Ministerial Direction No. 99 were intended to provide guidance, not to dictate a predetermined outcome. The decision-maker's application of the Direction to the specific evidence and material before them was paramount. The Deputy President noted the applicant's long criminal history, commencing in his youth, and acknowledged the authority of *Thornton* regarding the non-consideration of certain juvenile convictions. Ultimately, having regard to all the relevant material, the Deputy President was satisfied that the correct and preferable decision was not to revoke the cancellation of the applicant's visa.

The Tribunal affirmed the decision under review, meaning the visa cancellation remained in effect.