Aciek and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Aciek for the revocation of the mandatory cancellation of his Global Special Humanitarian visa (Class XB, Subclass 202). The Minister for Home Affairs had cancelled Mr Aciek's visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from numerous criminal convictions. The Senior Member of the Administrative Appeals Tribunal was required to determine whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether the mandatory cancellation of Mr Aciek's visa should be revoked. This required the Tribunal to consider the relevant Ministerial Directions, specifically Ministerial Direction No 65, which outlines the factors to be taken into account when considering revocation. These factors include the protection of the Australian community, community expectations, the risk of reoffending, the best interests of minor children, the strength, nature, and duration of ties to Australia, and hardship in the event of removal, including non-refoulement obligations.

The Tribunal's reasoning focused on the significant criminal record of Mr Aciek, which included approximately 21 offences, with a concentration of assault-related and property damage offences between October 2011 and December 2012. The Tribunal noted that Mr Aciek had been in custody since January 2014 and had acquired a substantial criminal record, thus failing the character test. Despite submissions on behalf of Mr Aciek that his past trauma and family deaths in 2012 might explain his offending, the Tribunal found these factors did not provide a substantial basis for satisfaction that his future risk of reoffending was insubstantial. The Tribunal concluded that Mr Aciek represented a very significant risk of re-offending, with a real risk of serious injury to others, a conclusion supported by various reports assessing his behaviour, psychiatric condition, and lack of significant treatment.

The Tribunal affirmed the mandatory cancellation of Mr Aciek's visa, finding that the risk of reoffending and the protection of the Australian community weighed heavily against revocation.