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

This matter concerned an application by Mr. Abdulgader for the non-revocation of the mandatory cancellation of his Class XB Refugee visa. The visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because Mr. Abdulgader did not pass the character test due to having a substantial criminal record, specifically a conviction for rape. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The AAT was required to determine whether there was another reason to revoke the mandatory cancellation of Mr. Abdulgader's visa, having regard to Ministerial Direction No. 79. This involved weighing the primary considerations, including the protection of the Australian community from criminal conduct and the risk of re-offending, against other considerations such as international non-refoulement obligations, ties to Australia, and the impact on victims.

The Tribunal considered the seriousness of Mr. Abdulgader's conduct, noting his conviction for rape involving significant violence and the profound impact on the victim. It also assessed the risk to the Australian community, finding Mr. Abdulgader to be at a moderate-high risk of re-offending. While acknowledging Mr. Abdulgader's stated fears of persecution if returned to Sudan or Eritrea, the Tribunal noted that the existence of a non-refoulement obligation does not preclude non-revocation, as Australia would not remove a person to a country where such an obligation exists. Furthermore, the Tribunal found a paucity of information regarding Mr. Abdulgader's circumstances and ties to Australia, with limited and contrary oral evidence provided despite opportunities to elaborate.

Weighing the primary considerations, which were given greater weight, against the other considerations, the Tribunal was satisfied that it was not appropriate to revoke the decision to cancel Mr. Abdulgader's visa. Accordingly, the Tribunal affirmed the delegate's decision not to revoke the cancellation.