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

The applicant, BPKX, held a Refugee (Subclass 200) visa which was cancelled under section 501(2) of the *Migration Act 1958* (Cth). The dispute concerned whether the applicant passed the character test and, if not, whether the discretionary power to cancel his visa should be exercised. The matter was heard by D. J. Morris SM.

The court was required to determine whether the applicant met the character test, and if not, whether the Minister's discretion to cancel the visa should be exercised. This involved considering the nature and seriousness of the applicant's offending, including specific convictions for armed robbery, assault, and aggravated burglary. The court also had to consider the relevance of the decision in *Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2022] FCAFC 23 to the applicant's offending committed as a child, and the application of Ministerial Direction No. 90, particularly its primary and other considerations.

The court reasoned that while the applicant had committed violent crimes, including one involving a woman and her daughter, there was no evidence of sexual crimes, crimes against children, or acts of family violence. The court distinguished *Thornton*, finding it not relevant as it concerned offending in Queensland and the intersection of specific Queensland and Commonwealth legislation, whereas the applicant's offending occurred in Victoria. The court noted that while some offending occurred before convictions were recorded, it represented continued serious misconduct and an alarming disregard for court orders, particularly as the applicant committed indictable offences while on bail. The court found that the applicant was entitled to citizenship of South Sudan. The decision under review was set aside, and a new decision was substituted.