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

This matter concerned an appeal by the Applicant against the decision of the Minister for Immigration, Citizenship and Multicultural Affairs to affirm the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The Applicant did not pass the character test, leading to the mandatory cancellation of his visa. The core of the dispute revolved around whether the decision-maker had adequately considered the relevant factors under Ministerial Direction No. 90, particularly concerning the best interests of minor children in Australia. The case was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the mandatory cancellation of the Applicant's visa should be revoked. This involved assessing the Applicant's personal circumstances, his criminal history, and his ties to Australia, weighed against the risk he posed to the Australian community. Crucially, the Tribunal had to consider the best interests of the Applicant's biological daughter, stepson, stepdaughter, and niece, who were all minors residing in Australia, in accordance with the framework set out in Ministerial Direction No. 90.

In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90, which mandates that primary considerations generally be given more weight than other considerations, and that one or more primary considerations may outweigh other primary considerations. The Tribunal found that the Applicant had maintained meaningful relationships with his daughter, stepson, stepdaughter, and niece, and was likely to play a positive parental role in their lives. Despite acknowledging the Applicant's criminal conduct, the Tribunal concluded that the best interests of these minor children were a significant factor. Ultimately, the Tribunal found that it could not exercise the discretion to revoke the mandatory cancellation of the Applicant's visa.

The Tribunal affirmed the reviewable decision made by the delegate of the Respondent, which was that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth).