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

This matter concerned the mandatory cancellation of a class BA subclass 200 refugee visa held by WWMD, a citizen of Iraq. The cancellation was based on WWMD having a substantial criminal record. WWMD was invited to make representations that there was another reason for the cancellation to be set aside under s 501CA of the *Migration Act 1958* (Cth). The delegate of the Minister decided that the discretion to set aside the cancellation was not enlivened. WWMD sought review of this decision by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the discretion to set aside the mandatory visa cancellation was enlivened, having regard to Ministerial Direction No. 90, which sets out the framework for decision-makers. Specifically, the Tribunal had to consider the primary and other considerations relevant to WWMD's circumstances, including the prospect of prolonged detention, the best interests of minor children affected by the decision, and the expectations of the Australian community.

The Tribunal reasoned that while WWMD had a substantial criminal record, he had resided in Australia since he was 16 or 17 and had significant health conditions, including PTSD, schizophrenia, and epilepsy, stemming from past abuse. The Tribunal found that the best interests of the ten minor children affected by the decision weighed in favour of revoking the cancellation, although this weight was lessened as WWMD did not play a parental role. The Tribunal also considered the prospect of prolonged detention, noting that while WWMD might attract non-refoulement obligations, this was considered more appropriate for a future Protection Visa application and therefore carried limited weight. The Tribunal ultimately concluded that the discretion to set aside the cancellation was enlivened.

The Tribunal set aside the decision under review and substituted a new decision revoking the mandatory cancellation of WWMD's visa.