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

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the mandatory cancellation of the Applicant's Special Category (Temporary) (Class TY) (Subclass 444) visa. The Applicant did not pass the character test due to having a substantial criminal record, which triggered the mandatory cancellation provisions under section 501CA(4) of the Migration Act 1958 (Cth). The Applicant sought to have the cancellation revoked.

The primary legal issue before the court was whether the Migration Review Tribunal erred in law by failing to properly consider the best interests of minor children in Australia when determining whether to revoke the mandatory cancellation of the Applicant's visa, as required by Ministerial Direction No. 90. Specifically, the court had to determine if the Tribunal correctly applied the factors outlined in the Direction concerning the relationship between the Applicant and the children, the potential parental role of the Applicant, the impact of the Applicant's conduct on the children, and the risk of family violence.

The court considered the provisions of Ministerial Direction No. 90, which mandates that the best interests of minor children in Australia must be a primary consideration. The Direction outlines various factors to be weighed, including the nature of the relationship between the child and the non-citizen, the likelihood of the non-citizen playing a positive parental role, the impact of the non-citizen's conduct on the child, and any evidence of family violence or abuse. The court noted the Applicant's substantial criminal record, including domestic violence offences, which weighed heavily against the Applicant. Despite the presence of several minor children in Australia, including the Applicant's son, the court found that the Tribunal's assessment of the best interests of these children, in light of the Applicant's conduct and the limited positive parental role he was likely to play, did not necessitate the revocation of the visa cancellation.

The court concluded that the Migration Review Tribunal did not err in law in its application of Ministerial Direction No. 90. The Tribunal's finding that there was no "another reason" pursuant to s501CA(4)(b)(ii) to revoke the original decision was upheld. Consequently, the decision under review was affirmed.