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

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant's visa had been cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because he had a substantial criminal record and therefore did not pass the character test. The Applicant sought revocation of this cancellation under subsection 501CA(4) of the Act.

The central legal issue before the Tribunal was whether there was "another reason" why the Applicant's visa cancellation should be revoked, as contemplated by paragraph 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the relevant provisions of the *Migration Act 1958* and Ministerial Direction No. 90, which sets out the principles and considerations to be applied in such cases, including the expectations of the Australian community, the extent of impediments to reintegration in New Zealand, and the strength of the Applicant's links to the Australian community.

The Tribunal reasoned that while the Applicant's criminal conduct would normally weigh against revocation in accordance with the expectations of the Australian community, other factors warranted consideration. The Tribunal noted the Applicant's strong ties to Australia, having resided there since childhood, and his commitment to caring for his sister who had recently undergone a heart transplant. It also considered the significant distress his removal would cause his immediate family, particularly in light of his mother's recent passing. While acknowledging the difficulties the Applicant might face in New Zealand, the Tribunal found that these were not insurmountable.

Ultimately, the Tribunal was satisfied that there was another reason why the original decision to cancel the Applicant's visa should be revoked. Accordingly, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.