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

This matter concerned an application by BVLD, a citizen of Sri Lanka, for review of a delegate's decision not to revoke the mandatory cancellation of his Protection (Class XA) (Subclass 866) visa. The applicant arrived in Australia in 2005 and was granted the visa in 2012. His visa was mandatorily cancelled in 2017 due to having a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. The applicant conceded he did not pass the character test and the issue before the Tribunal was whether there was "another reason" why the cancellation should be revoked.

The Tribunal was required to determine if there was "another reason" to revoke the mandatory visa cancellation, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958. This involved considering various factors, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, the risk of future offending, the expectations of the Australian community, the best interests of affected minor children, non-refoulement obligations, the strength and duration of the applicant's ties to Australia, and the impediments he would face if removed. The Tribunal was bound by Direction No. 79, which outlines the considerations for visa refusal and cancellation decisions.

The Tribunal reasoned that while several factors weighed in favour of revocation, including the best interests of the applicant's daughter, non-refoulement obligations, and impediments to accessing treatment in Sri Lanka, these were outweighed by the primary considerations. The Tribunal found that the nature and seriousness of the applicant's conduct, which included domestic violence and causing serious injury in a car accident, the risk to the Australian community, and the expectations of the Australian community, attracted greater weight. Despite acknowledging the applicant's early guilty pleas, remorse, and issues with alcohol and mental health, the Tribunal concluded that these primary considerations prevailed.

Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.