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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's Class AO Subclass 831 Prospective Marriage Spouse visa. The visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test. The Applicant subsequently requested the revocation of this cancellation, which was refused by the delegate. The Administrative Appeals Tribunal (AAT) had jurisdiction to review this refusal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation decision, considering the Applicant's circumstances and the application of Ministerial Direction No 90. This involved assessing the weight to be given to both primary and other considerations, particularly in light of the Applicant's offending history and the risk to the Australian community. The Tribunal was required to determine if any of the "other considerations" should be afforded the greatest weight in the particular circumstances of the case.

The Tribunal's reasoning focused on the interpretation of Ministerial Direction No 90, drawing on principles established in *Suleiman v Minister for Immigration and Border Protection* and *Khalil v Minister for Home Affairs*. The Tribunal noted that "other considerations" are not necessarily secondary and can, in certain circumstances, be afforded greater weight than primary considerations. In this case, the Tribunal considered the nature and seriousness of the Applicant's conduct, as outlined in paragraph 8.1.1(1) of the Direction, and the risk to the Australian community. The Tribunal ultimately found that the decision under review was affected by an error of law.

The Tribunal set aside the delegate's decision not to revoke the mandatory cancellation and substituted a new decision revoking the cancellation of the Applicant's visa.