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

This matter concerned an appeal by Mr Whiu against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The cancellation was based on Mr Whiu failing to pass the character test. The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason why the visa cancellation should be revoked, considering the criteria set out in Ministerial Direction 90.

The central legal issue before the Tribunal was the weight to be afforded to "other considerations" when assessing whether to revoke a mandatory visa cancellation, particularly in light of the primary considerations outlined in Ministerial Direction 90. The Tribunal had to consider the nature and seriousness of the offending conduct, the risk of reoffending, family violence, the best interests of minor children, community expectations, impediments to removal, and links to the Australian community. The Tribunal was guided by established case law, including *Suleiman v Minister for Immigration and Border Protection*, which established that "other considerations" could, in appropriate circumstances, outweigh primary considerations, even if they were not elevated to primary considerations themselves.

The Tribunal reasoned that while the seriousness of the offending conduct and the risk of reoffending counted against the applicant to a limited degree, these factors did not pose an unacceptable risk to the safety of the Australian community. The Tribunal found that the considerations weighing against the applicant were not sufficiently weighty to mandate his removal from Australia. Consequently, the Tribunal set aside the decision under review and substituted it with a decision revoking the cancellation of the applicant's visa.