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

The applicant, a citizen of New Zealand, sought review of the Minister's decision to refuse to revoke the mandatory cancellation of their Subclass 444 (Special Category) visa. The cancellation was based on the applicant failing to pass the character test due to an extensive criminal history, including drug offences, dishonesty offences, driving offences, and possession of a prohibited firearm. The Administrative Appeals Tribunal affirmed the decision to refuse revocation.

The primary legal issue before the court was whether the Tribunal erred in law by failing to properly consider and apply Ministerial Direction No. 99, specifically concerning whether there was another reason to revoke the mandatory cancellation of the applicant's visa. The court was required to determine if the Tribunal's assessment of the applicant's character, the risk posed to the Australian community, and the best interests of minor children, in light of the Direction, was legally sound.

The court found that the Tribunal had indeed erred in law. It had not given sufficient weight to the factors outlined in Ministerial Direction No. 99, particularly the best interests of the applicant's minor children and the applicant's rehabilitation efforts. The Tribunal's reasoning did not adequately demonstrate how it balanced these considerations against the seriousness of the applicant's criminal conduct and the risk of reoffending. The court concluded that the Tribunal's decision was vitiated by this error.

The court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.