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

This matter concerned an application for review of the Minister's decision not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special visa. The Applicant had failed to pass the character test. The Administrative Appeals Tribunal (AAT) was required to determine whether there was "another reason" why the mandatory cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The central legal issue before the AAT was whether the Applicant had established "another reason" to revoke the mandatory cancellation of his visa, notwithstanding his failure to pass the character test. This required the AAT to consider the principles outlined in Ministerial Direction No. 79, particularly Primary Consideration A concerning the protection of the Australian community from harm. The AAT also had to assess the nature and seriousness of the Applicant's past conduct and the risk of future offending.

The AAT reasoned that while the Applicant's offending history in New Zealand and Australia contained some relatively minor matters, a significant custodial sentence was imposed for arson of a building or motor vehicle in August 2020, alongside a conviction for carrying an offensive weapon. The AAT noted that the weight of authority favoured the view that the balancing of factors favouring a refusal to revoke a cancellation is part of the single exercise of determining whether there is another reason for revocation, rather than a separate residual discretion. Applying Ministerial Direction No. 79, the AAT found that the Applicant's conduct, particularly the arson offence, weighed heavily against revocation.

The AAT affirmed the decision not to revoke the mandatory cancellation of the Applicant's visa.