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

This matter concerned an application by WRFG for the revocation of the mandatory cancellation of their Class XA Subclass 866 protection visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record and being sentenced to a term of imprisonment of 12 months or more, pursuant to section 501(3A) of the *Migration Act 1958* (Cth). The Applicant sought to have the cancellation revoked under section 501CA of the Act. The decision was made by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal 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 section 501CA(4) of the Act. In determining this, the Tribunal was required to apply the framework and considerations set out in Direction No. 90, which guides decision-makers when exercising powers under sections 501 and 501CA of the Act. This involved weighing the four "Primary Considerations" and relevant "Other Considerations" stipulated in the Direction.

The Tribunal reasoned that paragraph 5.2 of Direction No. 90 outlines key principles regarding Australia's sovereign right to exclude non-citizens of character concern, the expectation that serious conduct will lead to visa refusal or cancellation, and Australia's low tolerance for criminal behaviour. The Tribunal was required to consider the four Primary Considerations: protection of the Australian community, whether the conduct constituted family violence, the best interests of minor children, and the expectations of the Australian community. It also had to consider the Other Considerations, including international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community. Applying these considerations, the Tribunal found that Primary Considerations 1 (protection of the Australian community) and 4 (expectations of the Australian community) weighed heavily in favour of non-revocation, and that the relevant Other Considerations did not outweigh the significant weight of the Primary Considerations.

Consequently, the Tribunal concluded that it could not exercise the discretion to revoke the mandatory cancellation of the Applicant's visa. The decision under review, which affirmed the cancellation, was therefore affirmed.