Tran and Minister for Home Affairs (Migration)

The applicant, Mr Tran, sought the revocation of a mandatory visa cancellation. The Minister for Home Affairs opposed the application. The matter came before Deputy S A Forgie P of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the cancellation decision should be revoked, as contemplated by s 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the Tribunal to consider Mr Tran's character, his criminal record, the risk of reoffending, and the best interests of his minor children, all within the framework of Direction No. 65 issued by the Minister. A secondary issue arose concerning the validity of certain passages within Direction No. 65, which the applicant challenged as being inconsistent with the *Migration Act*.

The Tribunal found that while three discrete passages in Part C of Direction No. 65 were inconsistent with the *Migration Act* and therefore disregarded, the remaining provisions of the Direction were still binding. In applying the principles of Direction No. 65, the Tribunal engaged in a balancing exercise, weighing various factors including the nature and seriousness of Mr Tran's offending, the frequency and trend of his criminal conduct, and whether he had re-offended after warnings. The Tribunal noted that Mr Tran's offending, primarily related to driving offences and drug possession and trafficking, occurred over a confined period and stemmed from personal difficulties, including the breakdown of his relationship and the removal of his son. The Tribunal concluded that Mr Tran recognised his wrongdoing and had taken steps towards rehabilitation.

Consequently, the Tribunal set aside the decision of 22 November 2018, which had declined to revoke the mandatory cancellation of Mr Tran's Class BB Subclass 155 Return (Residence) visa. In its place, the Tribunal substituted a decision revoking the visa cancellation under s 501CA(4)(b)(ii) of the *Migration Act*.