Tupu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category Visa. The visa had been mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test. The Applicant subsequently sought revocation of this cancellation, but this request was refused by a delegate of the Minister. The Applicant then sought review of that refusal decision in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, as contemplated by section 501CA(4) of the Migration Act. This required the Tribunal to consider the factors outlined in Ministerial Direction 99, which governs the exercise of the revocation power. Specifically, the Tribunal had to weigh the primary considerations, such as the protection of the Australian community, against other considerations, including the Applicant's circumstances and ties to Australia.

The Tribunal considered evidence regarding the Applicant's criminal offending, including two counts of assault occasioning bodily harm, noting that the custodial sentences imposed reflected the objective seriousness of these offences. However, the Tribunal also heard extensive evidence from the Applicant's partner, family members, and community representatives concerning his rehabilitation efforts, including participation in anger management and alcohol and drug programs. Crucially, the Tribunal heard evidence detailing the Applicant's strong family ties in Australia, particularly his relationship with his young son and his partner, who is also a New Zealand citizen residing in Australia. The Tribunal noted that while the Applicant's offending was serious, the evidence of his rehabilitation and the significant impact his deportation would have on his son and partner constituted "other considerations" that warranted careful assessment under Ministerial Direction 99. The Tribunal ultimately found that these other considerations were of sufficient weight to be afforded greater significance than the primary considerations, leading to the conclusion that there was another reason to revoke the visa cancellation.

The Tribunal set aside the delegate's decision and substituted a new decision revoking the mandatory cancellation of the Applicant's visa.