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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a 43-year-old man who arrived in Australia at age eight, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having been sentenced to 14 months imprisonment for possessing child exploitation material. The Applicant sought revocation of this cancellation decision under section 501CA of the Act. The Tribunal, constituted by Member L M Gallagher, was required to determine whether there was "another reason" why the visa cancellation decision should be revoked, having regard to the primary and other considerations set out in Direction No. 90.

The central legal issue was the application of Direction No. 90, which outlines the considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation. The Tribunal was required to weigh various factors, including the protection of the Australian community, the nature and seriousness of the Applicant's offending, the risk posed to the Australian community, the best interests of minor children, community expectations, and the strength, nature, and duration of the Applicant's ties to Australia. The Applicant did not dispute that he failed the character test due to his criminal record.

The Tribunal considered evidence from the Applicant, his siblings, his brother-in-law, and a clinical psychologist. The Applicant's family members provided evidence of his ties to Australia and expressed support for him. The Applicant also raised concerns about his mental health and potential isolation if returned to Portugal, where he had limited connections and did not speak the language. The Tribunal noted that primary considerations in Direction No. 90 should generally be given greater weight than other considerations, and that one or more primary considerations could outweigh other primary considerations. The Applicant's denial of lying about treatment opportunities in detention was also considered.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa.