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

This proceeding concerned an application to revoke the mandatory cancellation of the applicant’s Class XB Subclass 202 Global Special Humanitarian visa. The cancellation was mandatory under s 501(3A) of the *Migration Act 1958* (Cth) because the applicant did not pass the character test due to having a substantial criminal record and was serving a full-time custodial sentence for an Australian State offence. The applicant subsequently made representations for the cancellation decision to be revoked.

The court was required to determine whether there was another reason why the mandatory visa cancellation decision should be revoked, pursuant to s 501CA(4) of the Act. This involved a balancing exercise of various considerations as outlined in Direction 99.

The court considered the considerations set out in clauses 8 and 9 of Direction 99, categorised as primary and other considerations. Primary considerations included protection of the Australian community, family violence, ties to Australia, best interests of minor children, and community expectations. Other considerations included legal consequences, impediments to removal, impact on victims, and impact on Australian business interests. The court noted that primary considerations are generally given greater weight, but that other considerations could, in appropriate circumstances, be given equal or greater weight. The applicant's submission that certain "other considerations" should be treated as primary considerations was rejected, as no particular circumstances were identified to warrant a departure from the general regime of Direction 99.

The court affirmed the visa cancellation decision.