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

This matter concerned an appeal by Mr Tran against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to mandatorily cancel his Class BB Subclass 155 Five Year Resident Return visa. The cancellation was based on Mr Tran failing to pass the character test due to having a substantial criminal record. The central dispute revolved around whether the discretion to revoke this mandatory cancellation, as provided by section 501CA of the *Migration Act 1958* (Cth), should be exercised in Mr Tran's favour.

The court was required to determine whether, in exercising the discretion under s 501CA, the delegate had properly considered the relevant factors outlined in Ministerial Direction No. 90. Specifically, the court had to assess whether the primary considerations, including the protection of the Australian community, the seriousness of the offending and future risk, the best interests of minor children in Australia, and the expectations of the Australian community, were adequately weighed. Furthermore, the court needed to consider the "other considerations," such as the extent of impediments to removal and the strength, nature, and duration of Mr Tran's ties to Australia.

The court found that the primary considerations were squarely balanced. However, it determined that the "other considerations" both favoured revocation of the visa cancellation. Based on this assessment, the court was satisfied that there was another reason to revoke the decision to cancel Mr Tran's visa.

Consequently, the court set aside the delegate's decision and substituted it with a decision revoking the cancellation of Mr Tran's Class BB Subclass 155 Five Year Resident Return visa.