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

The Administrative Appeals Tribunal considered the case of Ajak and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the non-revocation of a mandatory cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa, following the Applicant failing to pass the character test due to a conviction for rape. The Applicant sought to have this mandatory cancellation revoked.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, given that he did not pass the character test. This required the Tribunal to consider the framework set out in Ministerial Direction 99, which outlines the principles and considerations for such decisions, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, and other relevant factors.

The Tribunal reasoned that the Applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more for his index offending, which was two counts of rape. The Tribunal found the offending to be extremely serious, noting the persistence, duration, and injuries inflicted upon the victim. While acknowledging evidence suggesting the Applicant's remorse, potential PTSD, and his brother's belief in his change, the Tribunal found that the risk of reoffending was moderate to high, and that the protection and expectations of the Australian community outweighed other considerations favouring revocation. The Tribunal specifically noted that the Applicant's trauma recovery would be aided by the removal of stressors from detention, but this was inconclusive regarding the impact of any resumption of alcohol abuse, which was a significant feature of his offending. The Tribunal concluded that there was no other reason to revoke the mandatory cancellation of the Applicant's visa.