RKHW and Minister for Home Affairs (Migration)

This matter concerned an application for merits review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's permanent visa. The applicant, a 50-year-old Turkish national who had resided in Australia for 44 years since the age of five, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, including drug trafficking offences for which he had served a custodial sentence. The applicant sought revocation of the cancellation, arguing there was "another reason" to do so.

The Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation of the applicant's visa, having regard to all relevant considerations, including those outlined in Part C of Direction No. 65. These considerations included the protection of the Australian community from criminal or serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal noted that the applicant did not dispute having a substantial criminal record.

In its reasoning, the Tribunal considered the applicant's long period of residence in Australia, his strong ties to the community, and his stated cessation of drug use since his release from prison. It also took into account the impact of visa cancellation on his three minor sons and two step-sons, who are Australian citizens. The Tribunal acknowledged the seriousness of the applicant's criminal conduct, including persistent breaches of family violence intervention orders and drug trafficking, but weighed this against his significant rehabilitation efforts and the best interests of his children. The Tribunal concluded that there was another reason to revoke the cancellation decision.

The Tribunal set aside the decision not to revoke the visa cancellation and substituted a decision to revoke the mandatory cancellation of the applicant's visa.