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

This matter concerned an application for review of a decision to affirm the mandatory cancellation of the Applicant's Class BB (Subclass 155) Five Year Resident Return visa. The Applicant did not pass the character test due to having a substantial criminal record. The dispute before the court was whether the discretion to revoke the visa cancellation under section 501CA(4) of the Migration Act 1958 (Cth) should be exercised, considering Ministerial Direction No. 99. The decision was made by J Rau Sc SM.

The legal issues before the court were whether the Applicant had established "another reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of his visa. This required the court to consider and weigh the primary and other considerations as outlined in Ministerial Direction No. 99, which governs the exercise of this discretion. The court was tasked with determining if, on balance, the factors favoured revoking the cancellation or affirming the original decision.

The court's reasoning involved a detailed assessment of the primary and other considerations under Ministerial Direction No. 99. It found that while some considerations weighed in favour of revocation, such as the Applicant having lived in Australia for most of his adult life and having estranged children here, these were outweighed by factors against revocation. These included the Applicant's history as a serial offender, committing serious offences including family violence, firearms, and drug offences, and breaching bail and parole. The court noted the lack of corroboration for the Applicant's claims regarding family contact and the absence of independent psychological assessments of his mental health or reoffending risk. Ultimately, the court concluded that the proper application of the Direction favoured not exercising the discretion to revoke the cancellation.

The decision under review was affirmed, meaning the mandatory cancellation of the Applicant's visa was upheld. The court found that there was not "another reason" pursuant to section 501CA(4)(b)(ii) to revoke the original decision to cancel the visa.