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

This matter concerned an application to the Tribunal to revoke the mandatory cancellation of the Applicant's Class XB Subclass 200 Refugee (Permanent) visa. The cancellation was initiated under section 501(3A) of the *Migration Act 1958* (Cth) because the Applicant did not pass the character test due to having a substantial criminal record. The Applicant sought to have this cancellation revoked under section 501CA(4) of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, as required by section 501CA(4)(b)(i) of the Act. In determining this, the Tribunal was bound to comply with Ministerial Direction No. 99, which provides a framework for considering primary and other considerations when exercising the discretion to revoke a mandatory visa cancellation.

The Tribunal's reasoning involved a detailed consideration of the Applicant's circumstances in light of Ministerial Direction No. 99. It acknowledged the Applicant's substantial criminal record, which meant he did not pass the character test. However, the Tribunal also had regard to the Applicant's representations, evidence, and the submissions made by both parties. The Tribunal noted the importance of "other considerations" as distinct from "secondary" considerations, referencing *Suleiman v Minister for Immigration and Border Protection* [2018] FCA 594, which clarified that these other considerations, including non-refoulement obligations, must be given appropriate weight and may, in certain circumstances, be afforded the greatest weight. The Tribunal considered the principles outlined in paragraph 5.2 of Direction 99, including Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the varying levels of tolerance for criminal conduct based on the length of time a non-citizen has spent in the Australian community. The Tribunal also noted that certain conduct, such as family violence, is considered so serious that even strong countervailing considerations may be insufficient to justify revoking a cancellation.

The Tribunal found that there was another reason why the original decision to cancel the Applicant's visa should be revoked. Consequently, the Tribunal set aside the original decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.