Wihongi-Lim and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's visa. The Applicant's visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he failed to pass the character test. The Applicant subsequently requested the revocation of this cancellation, but this request was refused by a delegate of the Minister. The Administrative Appeals Tribunal (AAT) was asked to review this refusal.

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 1958 (Cth). This required the Tribunal to consider the application of Ministerial Direction No. 99, which sets out the framework for assessing primary and other considerations when determining whether to revoke a mandatory visa cancellation. The Tribunal had to weigh the seriousness of the Applicant's offending against any other considerations presented.

The Tribunal reasoned that while the Applicant's criminal conduct, including violent offences and a history of drug addiction, was serious and warranted significant weight as a primary consideration, the evidence also established compelling "other" considerations. These included the Applicant's deeply troubled childhood marked by neglect, abuse, and parental absence, which had a profound impact and contributed to his PTSD diagnosis. The Tribunal found that these factors, coupled with the Applicant's acceptance of responsibility, remorse, and commitment to rehabilitation, constituted "another reason" to revoke the mandatory cancellation. The Tribunal applied the principles from *Suleiman v Minister for Immigration and Border Protection* [2018] FCA 594, which clarified that "other" considerations are not inherently secondary and can, in certain circumstances, be afforded the greatest weight.

Ultimately, the Tribunal determined that the "other" considerations were sufficiently compelling to outweigh the primary considerations, and therefore, there was another reason to revoke the mandatory cancellation of the Applicant's visa. The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation.