CHJK and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate's decision to cancel the applicant's Class XA Subclass 866 Protection visa on character grounds. The applicant, born in 1968, arrived in Australia in 2006 on a Global Special Humanitarian visa with his wife and two children. He subsequently applied for and was granted a Protection visa in 2013. However, by letter dated November 2010, the applicant was notified that his humanitarian visa was being considered for cancellation on character grounds, and he provided a Personal Details Form in response. The delegate's decision, made in January 2019, found that the applicant did not pass the character test under section 501 of the *Migration Act 1958* (Cth), and the power to revoke the cancellation was not exercised, resulting in the continued cancellation of his Protection visa.

The court was required to determine whether the delegate had erred in exercising the discretion to refuse to revoke the visa cancellation. This involved considering the primary considerations outlined in Direction No 79, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's conduct, and the risk to the Australian community. The court also had to assess other considerations such as the best interests of any minor children, the strength, nature, and duration of the applicant's ties to Australia, the impact on family members, the extent of impediments to removal, and the expectations of the Australian community. The principle of non-refoulement was also a relevant consideration.

In its reasoning, the court adopted the comprehensive statement of the effect of section 197C of the Act from the decision in *CWGF and Minister for Home Affairs (Migration)* [2019] AATA 179. The court found that the applicant arrived in Australia as an adult and that the offending conduct commenced within two years of his arrival. There was no evidence of strong ties to Australian citizens or any positive contribution to the Australian community. While the court accepted that non-revocation would significantly impact the applicant's children, the extent of this impact was unclear due to a lack of evidence regarding contact. The court also noted the absence of evidence of community involvement or impact on Australian business interests or victims. Regarding impediments to removal, the court considered a psychiatrist's report from 2010 indicating the applicant suffered from Post-Traumatic Stress Disorder, but also noted his history of employment and improved behaviour when sober.

The court affirmed the delegate's decision.