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

This matter concerned an application by CHJK to review a decision to cancel his Class XA-866 Protection visa. The applicant had multiple criminal convictions, which led to him failing the character test under section 501(6) of the Migration Act 1958 (Cth). The primary dispute before the Administrative Appeals Tribunal (AAT) was whether there was "another reason" why the mandatory visa cancellation should be revoked, considering Ministerial Direction No. 79.

The AAT was required to determine the weight to be given to various considerations under Ministerial Direction No. 79, including the protection of the Australian community from criminal conduct, the applicant's international non-refoulement obligations, the strength and duration of his ties to Australia, the impact of his removal on his minor children, and the potential for indefinite detention. The Tribunal also had to assess the nature and seriousness of the applicant's criminal behaviour, particularly his history of domestic violence, and the risk of future harm to the Australian community.

The Tribunal acknowledged the seriousness of the applicant's criminal history, which included significant domestic violence and physical harm, and noted that such offences are treated with the utmost seriousness under Direction 79. However, the Tribunal also considered the applicant's personal circumstances, including his traumatic past experiences in South Sudan, his diagnosis of PTSD, depression, and anxiety, and his claim of being alcohol-free for six years. Crucially, the Tribunal weighed the prospect of the applicant facing indefinite immigration detention at his age against his criminal record. The Tribunal found that the applicant had demonstrated contrition, engaged in rehabilitation programs, and appeared to be re-establishing relationships with his children, while also noting the lack of evidence of further harassment.

Ultimately, the AAT set aside the decision to cancel the applicant's visa and substituted a decision to revoke the cancellation. The Tribunal concluded that, on balance, the applicant's personal circumstances, including the likelihood of indefinite detention and the impact on his children, constituted "another reason" why the visa cancellation should be revoked, despite the seriousness of his criminal history.