Toroa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Toroa and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, who arrived in Australia at the age of 10 and was now 43, had been sentenced to a term of imprisonment of five years and four months for conspiracy to possess a prohibited drug with intent to sell or supply, meaning he did not pass the character test under the Migration Act. The central issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation decision, having regard to the primary and other considerations outlined in Direction No. 99.

The Tribunal was required to determine if the applicant's circumstances constituted an "another reason" to revoke the visa cancellation, as mandated by section 501CA(4)(b)(ii) of the Migration Act. This determination involved weighing the primary considerations, such as the protection of the Australian community and the nature and seriousness of the applicant's offending, against other considerations. These other considerations included the strength, nature, and duration of the applicant's ties to Australia, the best interests of any children involved, and the expectations of the Australian community. The Tribunal also had to consider the risk to the Australian community should the applicant re-offend.

In its reasoning, the Tribunal acknowledged that the applicant did not dispute failing the character test due to his substantial criminal record. The Tribunal then proceeded to assess the primary and other considerations under Direction No. 99. It considered the applicant's extensive ties to Australia, including his adult son and other family members, his remorse for his offending, and his efforts at rehabilitation in custody, such as completing courses and engaging in programs like SMART Recovery. The Tribunal also took into account evidence from witnesses regarding his character and potential for future employment. The Tribunal ultimately found that there was indeed "another reason" why the decision to cancel the visa should be revoked.

Consequently, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation of the applicant's visa and substituted it with a decision to revoke the cancellation.