ToTK and Minister for Home Affairs (Migration)

This matter concerned an application by Mr. ToTK for review of a mandatory visa cancellation decision made by the Minister for Home Affairs. Mr. ToTK held a Refugee visa but had failed to pass the character test due to a substantial criminal record. The Minister's delegate had applied Ministerial Direction No. 65, which requires the Minister to consider whether there is "another reason" why a cancellation decision should be revoked, taking into account factors such as the protection of the Australian community, community expectations, the applicant's ties to Australia, and any hardship the applicant would face upon return to their home country, including risks of persecution.

The primary legal issues before the Tribunal were whether the delegate had erred in the exercise of the discretion to refuse to revoke the mandatory visa cancellation. Specifically, the Tribunal was required to determine if the delegate had adequately considered the "another reason" limb of Ministerial Direction No. 65, particularly in light of the applicant's potential hardship upon return to Iran, including the risk of persecution based on his religion and the likelihood of indefinite immigration detention. The Tribunal also had to consider the legal standard of reasonableness in the exercise of such discretions, which requires a rational foundation, consideration of all relevant factors, and a result that is not plainly unjust.

The Tribunal reasoned that any decision made in the exercise of the revocation discretion must be legally reasonable, meaning it has a rational foundation, takes all relevant considerations into account, and results in a decision that is not plainly unjust, citing *Minister for Immigration and Citizenship v Li* and *Ogbonna v Minister for Immigration and Border Protection*. The Tribunal further noted that the purpose of the evaluation is to achieve a result that is fair and rational in all the circumstances, consistent with the object and terms of the relevant statutory provisions and the Tribunal's review jurisdiction to achieve a "preferable" outcome. In relation to Mr. ToTK's circumstances, the Tribunal considered evidence regarding the situation in Iran, including reports on religious freedom and tolerance, and concluded that the personal consequences of his removal to Iran would likely be "crushing." This included considerable hardship in re-establishing himself, potential family isolation, and significant unemployment, compounded by his status as a member of a minority religion and the endemic corruption in Iran. The Tribunal also noted the applicant's prolonged period in immigration detention, which would likely continue if his review application were unsuccessful.

The Tribunal set aside the delegate's decision and substituted a decision to revoke the mandatory visa cancellation.