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

This matter concerned an application by TRHR (the Applicant) to revoke a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation.

The legal issues before the Tribunal were twofold: first, whether the Applicant satisfied the character test under the Migration Act; and second, if the Applicant did not satisfy the character test, whether there existed "another reason" to revoke the mandatory visa cancellation decision, as contemplated by section 501CA(4)(b)(ii) of the Act. In considering the second issue, the Tribunal was directed to take into account primary and other considerations as outlined in Ministerial Direction No. 90.

The Tribunal reasoned that the Applicant did not satisfy the character test, meaning section 501CA(4)(b)(i) could not be invoked. In assessing whether there was "another reason" to revoke the cancellation under section 501CA(4)(b)(ii), the Tribunal considered the primary consideration of protecting the Australian community, as guided by Ministerial Direction No. 90. This involved evaluating the nature and seriousness of the Applicant's conduct, the expectations of the Australian community regarding non-citizens who engage in serious conduct, and the risk of future offending. The Tribunal also considered other factors such as the Applicant's international non-refoulement obligations, the implications of prolonged detention, the impediments to removal, and the strength and duration of his ties to the Australian community.

The Tribunal found that there was another reason to revoke the mandatory visa cancellation decision. Consequently, the Tribunal set aside the decision and substituted it with a decision to revoke the mandatory cancellation.