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

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, who held a Class TY Subclass 444 Special Category (Temporary) Visa, did not pass the character test due to a substantial criminal history, having been sentenced to 18 months imprisonment. The central issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the Applicant's visa should be revoked, as contemplated by subsection 501CA(4)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to consider the factors outlined in Ministerial Direction 90, which governs decisions regarding visa refusal, cancellation, and revocation of mandatory cancellations. These factors include, but are not limited to, international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community. A primary consideration for the Tribunal was the best interests of the Applicant's minor children, NA (17 years old) and AI (14 years old). The Tribunal also considered the Applicant's evidence regarding his upbringing, his relationship with his children and extended family, and his efforts to maintain these connections despite his incarceration.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. Therefore, the sole question was whether another reason existed to revoke the cancellation. The Tribunal gave significant weight to the best interests of the Applicant's minor children, noting their strong statements about his importance in their lives and their need for his presence and support. The Applicant's history of providing for his children, maintaining proximity to them, and continuing to communicate with them daily while in detention were also considered. The Tribunal concluded that these factors, particularly the impact on the minor children, constituted another reason why the original decision to cancel the Applicant's visa should be revoked.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted it with a decision to revoke the original cancellation.