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

This matter concerned an application by Mr Bah (the Applicant) for the non-revocation of a mandatory cancellation of his Class XB Subclass 202 Global Special Humanitarian visa, following his failure to pass the character test. The decision-maker was required to consider Ministerial Direction No. 99. The Applicant contended that there was strong evidence of rehabilitation, a remote risk of re-offending, and substantial impediments to his survival in his receiving country. The Tribunal ultimately set aside the decision under review.

The legal issues before the Tribunal included the application of Ministerial Direction No. 99, specifically the principles guiding the consideration of whether to revoke a mandatory visa cancellation. This involved weighing the sovereign right of Australia to determine who may enter or remain in the country against the individual circumstances of the Applicant, including his ties to Australia, the nature of his offending, and any impediments to his return to his country of origin. The Tribunal was required to assess the strength, nature, and duration of the Applicant's ties to Australia, including his family and social links, and consider the impact of a decision on his family members who were Australian citizens or permanent residents.

The Tribunal reasoned that while the Applicant's offending weighed against him, significant countervailing considerations were present. The Applicant had resided in Australia for 13 years, contributing positively to the community through employment and volunteer work, including assisting with flood clean-up efforts. He had strong family ties in Australia, including with his uncle, aunt, and their children, as well as with his own daughter, who expressed significant distress at the prospect of his deportation. The Tribunal found that the Applicant had provided truthful evidence and demonstrated rehabilitation, with a remote risk of re-offending. Furthermore, the Tribunal considered that substantial impediments to his survival in Sierra Leone existed, given his background as a refugee and the loss of his parents.

Consequently, the Tribunal exercised its discretion to revoke the cancellation of the Applicant's visa, ordering that the decision under review be set aside and the cancellation of his visa be revoked. The Applicant was therefore permitted to lawfully remain in Australia.