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

This matter concerned the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) of the *Migration Act 1958* (Cth) due to the Applicant failing to pass the character test, specifically by having a substantial criminal record. The Applicant sought to have this cancellation revoked under section 501CA(4) of the Act. The decision was made by Senior Member J Rau SC of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked. In determining this, the Tribunal was required to consider and apply Ministerial Direction No. 90, which sets out the principles and considerations for refusing or cancelling visas under section 501 and revoking mandatory cancellations under section 501CA. This involved assessing the nature and seriousness of the Applicant's conduct, the risk to the Australian community, and any countervailing considerations.

The Tribunal reasoned that while the Applicant did not dispute having a substantial criminal record, the critical question was whether to exercise the discretion to revoke the cancellation. In applying Ministerial Direction No. 90, the Tribunal noted that the Applicant had engaged in violent behaviour towards two women, which was considered very serious, particularly as it occurred in the presence of children. The Tribunal also considered the Applicant's history of motor vehicle offences and a breach of an apprehended violence order. Despite these serious aspects, the Tribunal found that the breach of the apprehended violence order, which triggered the cancellation process, was considered by the court to be at the lower end of the scale and occurred by accident. The Tribunal also took into account the Applicant's long period of residence in Australia since childhood, his limited contact with his daughters, and his efforts to address his mental health issues and substance abuse.

Ultimately, the Tribunal found that there was another reason why the original decision to cancel the Applicant's visa should be revoked. The Tribunal ordered that the decision under review be set aside.