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

The applicant, Tapihiko, sought judicial review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse to revoke the mandatory cancellation of his Subclass 444 Special Category (Temporary) visa. The visa had been cancelled under section 501CA(4) of the *Migration Act 1958* (Cth) on the basis that the applicant did not pass the character test due to having a substantial criminal record. The review was heard by Griffin QC SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Minister's decision to refuse revocation of the visa cancellation was the correct and preferable decision, and whether the applicant had provided sufficient information to satisfy the Minister that the visa cancellation should be revoked. This involved considering the application of Ministerial Direction No. 90, which outlines the non-exhaustive list of considerations to be taken into account when assessing whether to revoke a visa cancellation under section 501CA.

The Tribunal considered the primary considerations under Ministerial Direction No. 90, including the protection of the Australian community, the seriousness of the offending and future risk, family violence, and the best interests of minor children in Australia. It also weighed other considerations such as the extent of impediments if removed, the impact on victims, and the applicant's links to the Australian community, including the strength, nature, and duration of his ties to Australia. The Tribunal found that while the applicant had a substantial criminal record, the specific circumstances of his case, including his rehabilitation efforts and his strong ties to Australia, warranted special consideration.

Ultimately, the Tribunal determined that the mandatory cancellation of the applicant's visa should be revoked. The decision under review was set aside and substituted with a decision to revoke the visa cancellation.