Su'A and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an appeal by Mr Su'A, a New Zealand citizen, against the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to affirm the mandatory cancellation of his visa. Mr Su'A's visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from a substantial criminal record that included sentences of imprisonment of 12 months or more. Mr Su'A subsequently made representations seeking the revocation of this cancellation decision under section 501CA of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the applicant's representations and assess whether they established a sufficient basis for revocation, standing in the shoes of the original decision-maker and considering the circumstances at the time of the Tribunal's review. The Tribunal was guided by principles established in *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* and *Viane v Minister for Immigration and Border Protection*, which stipulate that all substantial and significant claims made in representations must be genuinely and realistically considered.

The Tribunal found that Mr Su'A's criminal record, which was the basis for his failure to pass the character test, did not provide a reason for revocation under section 501CA(4)(b)(i) of the Act. Therefore, the focus shifted to whether any "other reason" existed. The Tribunal considered various factors, including Mr Su'A's voluntary departure from Australia, his establishment in New Zealand, and the expressed intentions of his family in Australia to relocate to New Zealand if the cancellation were affirmed. Despite these considerations, the Tribunal concluded that the factors weighing against revocation outweighed those in favour. Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of Mr Su'A's visa.