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

This matter concerned an application to revoke the mandatory cancellation of the applicant's Class XB Subclass 200 Refugee (Permanent) visa. The applicant had failed to pass the character test due to having a substantial criminal record. The court was required to determine whether there was another reason why the mandatory cancellation of the visa should be revoked, having regard to Direction 99.

The court was bound to comply with Direction 99, which outlines the considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation. These considerations are divided into primary considerations, such as the protection of the Australian community, the strength of ties to Australia, and the best interests of minor children, and other considerations, including legal consequences and impediments to removal. Direction 99 generally requires primary considerations to be given greater weight than other considerations, although this is not an absolute rule. The decision-maker must also consider the principles set out in clause 5.2 of Direction 99, which address Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that serious character concerns will lead to visa refusal or cancellation.

The court found that there was another reason to revoke the visa cancellation decision. This satisfaction was reached after considering the relevant primary and other considerations as mandated by Direction 99, and in the context of the guiding principles. The court's reasoning indicates that the specific circumstances of the case, when weighed against the framework of Direction 99, supported the revocation of the cancellation. The decision under review was set aside and substituted with a decision to revoke the mandatory cancellation.