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

This matter concerned an application by Mr Sequera to the Administrative Appeals Tribunal (the Tribunal) seeking to revoke the mandatory cancellation of his visa. The cancellation had been triggered by Mr Sequera failing to pass the character test. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent.

The primary legal issue before the Tribunal was whether there was "another reason" why the cancellation of Mr Sequera's visa should be revoked, as required by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). In determining this, the Tribunal was bound by Ministerial Direction 90 (MD90), which outlines the considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation.

The Tribunal reasoned that while Ministerial Direction 90 designates certain considerations as "primary," the case law, particularly as interpreted in *Suleiman v Minister for Immigration and Border Protection* and affirmed in subsequent Federal Court and Tribunal decisions, establishes that "other" considerations are not inherently secondary. These "other" considerations may, in appropriate circumstances, be given weight that overbears the primary considerations. The Tribunal considered the nature and seriousness of the offending conduct and the risk of reoffending as matters of moderate weight against the applicant. It then turned to consider the "other" considerations, noting that it stands in the shoes of the Minister and must make its decision based on the evidence before it, applying the principles of MD90. The Tribunal ultimately set aside the decision to cancel the visa and substituted a decision to revoke the cancellation.