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

This matter concerned an application to review the cancellation of the Applicant's visa under section 501(2) of the *Migration Act 1958* (Cth) on the grounds that the Applicant did not pass the character test. The Applicant sought to argue that the discretion not to exercise the power to cancel his visa should have been exercised in his favour. The Administrative Appeals Tribunal was required to consider Ministerial Direction No. 90, which outlines the considerations to be applied when determining whether to cancel a visa on character grounds.

The Tribunal was tasked with determining whether the discretion to cancel the Applicant's visa should be exercised, having regard to Ministerial Direction No. 90. This involved weighing various considerations, including the Applicant's background, his offending behaviour, his subsequent good conduct in prison and the community, and his potential future contributions to Australian society. The Tribunal also had to consider the best interests of any minor children affected by the decision, as mandated by the Direction.

In its reasoning, the Tribunal acknowledged the seriousness of family violence, which was a factor weighing in favour of cancellation. However, it ultimately found that the Applicant's strong history of voluntary service, both within the prison system and in the wider community, coupled with the aberrant nature of his offending and the low risk of re-offending, tipped the balance in his favour. The Tribunal concluded that these factors, when weighed in accordance with Ministerial Direction No. 90, supported the exercise of discretion not to cancel the Applicant's visa. Consequently, the Tribunal set aside the original decision and substituted it with a decision that the power to cancel the Applicant's visa would not be exercised.