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

The Administrative Appeals Tribunal (the Tribunal) considered the mandatory cancellation of a visa under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, SNVK, had their visa cancelled because they failed to pass the character test, specifically due to having a substantial criminal record. The Tribunal was tasked with reviewing this decision, with Ministerial Direction No. 90 guiding the assessment of relevant considerations.

The central legal issues before the Tribunal were how to weigh the mandatory considerations under Ministerial Direction No. 90, including the protection of the Australian community from criminal or other serious conduct, the nature of the harm caused by the applicant's offending (which included common assault), the risk of re-offending, and the impact of family violence. Additionally, the Tribunal had to consider the best interests of the applicant's minor children and the expectations of the Australian community.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's criminal conduct and the importance of protecting the Australian community. However, it also gave significant weight to the best interests of the applicant's minor children, who would be significantly impacted by their father's removal from Australia. The Tribunal found that while the primary considerations weighed against the applicant, the compelling best interests of the children, coupled with other considerations such as the applicant's efforts at rehabilitation and the passage of time since the offending, meant that the original decision to cancel the visa was not the correct or preferable one. Consequently, the Tribunal set aside the original decision and substituted it with a new decision to not cancel the visa.