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

This matter concerned the review of a decision to cancel the applicant's protection visa under section 501(3A) of the *Migration Act 1958* (Cth) on character grounds. The applicant had been involved in a robbery in company, during which he exhibited violence. The dispute centred on whether the delegate had properly exercised the discretion to refuse to grant the visa, considering the protection and expectations of the Australian community, the applicant's history of alcohol and gambling addiction, his breaches of bail, and evidence of rehabilitation. The case was heard by Deputy President B W Rayment Oam Qc.

The primary legal issues before the court were whether the delegate had erred in the exercise of the discretion to refuse to grant the visa, particularly in relation to the application of Direction No. 79. This involved determining how the delegate should have weighed the protection of the Australian community against the applicant's personal circumstances, including his troubled childhood, addiction issues, and efforts towards rehabilitation. The court also considered the non-refoulement obligations owed to the applicant, given he held a protection visa, and the implications of prolonged or indefinite detention if the cancellation were upheld.

The court reasoned that the delegate had failed to adequately consider the cumulative effect of the matters outlined in Direction No. 79, specifically in relation to the protection of the Australian community and the likelihood of re-offending. While acknowledging the seriousness of the applicant's criminal conduct, the court found that the delegate had not given sufficient weight to the evidence of the applicant's rehabilitation, his efforts to address his alcohol and gambling addictions, and the fact that he had been permitted to engage in work release. Furthermore, the court noted that upholding the cancellation would likely result in prolonged or indefinite detention, which weighed against the decision. The court concluded that the delegate had erred in the exercise of discretion.

The court set aside the decision under review and substituted a decision to refuse to grant the visa.