Chibwana and Minister for Home Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by Mr Chibwana, the applicant, seeking the revocation of the mandatory cancellation of his Orphan Relative visa. The applicant, who arrived in Australia at the age of 14, had a substantial criminal record, having been sentenced to a total of 34 months imprisonment for multiple offences committed between 2008 and 2017. Consequently, he failed to pass the character test as defined by section 501 of the Migration Act 1958 (Cth). The Minister had invited the applicant to make representations under section 501CA(4) of the Act as to why the original decision to cancel his visa should be revoked.

The Tribunal was required to determine whether there was "another reason" why the original decision to cancel the applicant's visa should be revoked, having regard to the principles outlined in Ministerial Direction No. 65. This involved considering various primary and other considerations, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's conduct, the risk of re-offending, the best interests of any minor children in Australia, the strength and duration of the applicant's ties to Australia, and the impact of removal on victims. The Tribunal also considered whether it was required to consider international non-refoulement obligations, although this was not a central issue in the final decision.

In reaching its decision, the Tribunal applied Ministerial Direction No. 65, which mandates that decision-makers give greater weight to primary considerations. The Tribunal acknowledged the applicant's submissions regarding his traumatic childhood, his struggles with English literacy and mental health, and his self-medication with drugs and alcohol as contributing factors to his offending. The applicant also presented evidence of his rehabilitation efforts, including undertaking courses, securing employment, and having a supportive family network, and expressed remorse for his past conduct. However, the Tribunal weighed these factors against the primary consideration of protecting the Australian community. The Tribunal found that the nature and seriousness of the applicant's criminal conduct, and the potential risk of future harm, were significant.

Ultimately, the Tribunal was not satisfied that there was another reason why the original decision to cancel the applicant's visa should be revoked. The Tribunal affirmed the decision not to revoke the cancellation of the applicant's Orphan Relative visa.