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

The applicant, Ms. Simeki, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Ms. Simeki failing to pass the character test. The matter was heard by O'Loughlin M in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the discretion to refuse to grant the visa should have been exercised, particularly in light of Ministerial Direction No. 90, which governs the exercise of this discretion. This required the court to consider the applicant's personal circumstances, her criminal conviction for aggravated causing serious harm, and the best interests of minor children in Australia, among other factors.

O'Loughlin M reasoned that while the applicant's criminal conduct was serious, she had lived in Australia for nearly 40 years, having arrived as a teenager. The court found that the applicant fell within the category of non-citizens for whom the Australian community might afford a higher level of tolerance for criminal conduct, as outlined in clause 5.2(4) of Ministerial Direction No. 90. Furthermore, the court determined that the applicant's relationship with minor children in Australia was not significant enough to warrant substantial weight in favour of revocation. Despite the seriousness of the offence, the court concluded that the weight of considerations, particularly the applicant's long-standing ties to Australia, favoured revocation.

Consequently, the court set aside the decision under review and substituted it with a decision that the visa cancellation be revoked.