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

This matter concerned an application by the Applicant to set aside the mandatory cancellation of his visa, which had been cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) due to his failure to pass the character test. The Applicant sought to argue that there was another reason why his visa cancellation should be revoked. The decision was made by Senior Member Chris Puplick AM of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether, in light of Ministerial Direction 90, there was another reason why the Applicant's visa cancellation should be revoked. This required the Tribunal to consider the various factors outlined in the Direction, including the protection of the Australian community, the nature and seriousness of the Applicant's offending conduct, the risk of reoffending, the expectations of the Australian community, impediments to removal, and the Applicant's links to the Australian community. The Tribunal was required to weigh these considerations to decide if the cancellation was the "correct or preferable" decision.

The Tribunal's reasoning involved a detailed assessment of the evidence presented by the Applicant, including his assertions of rehabilitation through incarceration and religious study, his family's extensive support, and his awareness of the negative impact of his tattoos on future employment. The Tribunal also considered the legal principles established in cases such as *Suleiman*, *HSKJ*, and *FHHM*, which clarify that "other considerations" under Ministerial Directions are not inherently secondary and can, in appropriate circumstances, be given greater weight than "primary considerations." The Tribunal acknowledged that while the Applicant's offending conduct weighed against him, the strength of his community and family ties, coupled with his expressed remorse and efforts at rehabilitation, were significant "other considerations" that warranted careful evaluation.

Ultimately, the Tribunal found that the cancellation of the Applicant's visa was not the correct or preferable decision. The Tribunal set aside the original decision and substituted its own decision to revoke the visa cancellation.