TRAN and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by the applicant, Tran, for the revocation of a mandatory cancellation of her Class BC Subclass 100 Partner (Migrant) visa. The cancellation was based on her failure to pass the character test due to criminal convictions. The Administrative Appeals Tribunal was required to determine whether there was another reason why the original cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth), having regard to Ministerial Direction No. 79.

The Tribunal was tasked with considering several primary considerations under Direction No. 79, including the protection of the Australian community, the best interests of minor children in Australia affected by the decision, and the expectations of the Australian community. It also had to weigh other considerations, such as the strength, nature, and duration of the applicant's ties to Australia and the extent of impediments she might face if removed. The central legal issue was whether the applicant's circumstances presented a sufficient reason to set aside the mandatory cancellation of her visa.

In its reasoning, the Tribunal acknowledged that the applicant did not pass the character test due to her substantial criminal record, which triggered the mandatory cancellation. However, it then proceeded to consider the applicant's request for revocation. The Tribunal had regard to the applicant's submissions regarding her low level of involvement, remorse, and the fact that this was a singular offending event. It also considered a psychological assessment which suggested that cultural expectations regarding childbearing, coupled with difficulties in falling pregnant, contributed to her acquiescence in the offending behaviour, and that she posed a low risk of re-offending. The Tribunal found that these factors, when weighed against the primary considerations, constituted another reason to revoke the cancellation decision.

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