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

This matter concerned an application for review by the Applicant of a decision made by a delegate of the Minister not to revoke the mandatory cancellation of his visa. The Applicant's visa had been mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) on the grounds that he did not pass the character test, due to having a substantial criminal record or a conviction for a sexually based offence involving a child. The Applicant subsequently sought revocation of this decision, and on 28 October 2019, a delegate of the Minister decided not to revoke the cancellation. The Applicant sought review of this decision before 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, pursuant to s 501CA(4) of the *Migration Act*. This determination was to be made having regard to the primary and other considerations set out in Direction No. 79, which provides guidance on visa refusal and cancellation under s 501 and the revocation of mandatory cancellations under s 501CA. The Tribunal was satisfied that the Applicant did not pass the character test, and therefore the focus of the review was on the existence of any other compelling reasons for revocation.

The Tribunal's reasoning centred on the application of Direction No. 79. The direction mandates that where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation in light of the specific circumstances of the case. This involves weighing various considerations, including the protection of the Australian community, the expectations of the Australian community, the best interests of any child affected, the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments if returned to their country of origin. The Tribunal was required to assess whether these factors, when considered collectively, presented a sufficient reason to revoke the visa cancellation.