Chol and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class XB Subclass 202 Global Special Humanitarian visa. The cancellation was based on the applicant failing to pass the character test due to having a substantial criminal record, specifically a conviction for intentionally causing serious injury and assault, for which he received a sentence of imprisonment of four years and nine months. The applicant sought revocation of this cancellation, arguing there was "another reason" why it should be revoked.

The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, applying Ministerial Direction No. 90. This involved weighing various primary and other considerations, including the protection of the Australian community, the expectations of the Australian community, the best interests of minor children, international non-refoulement obligations, and the extent of impediments to removal. The Tribunal also had to consider the applicant's history of offending, including significant crimes of violence, weapons offences, and assaulting police, and assess the risk of reoffending and the potential harm that could result.

The Tribunal reasoned that the primary considerations of protecting the Australian community and the community's expectations weighed heavily against revoking the cancellation. This was due to the serious nature of the applicant's offending, his lengthy criminal history, and the Tribunal's finding of a high risk of reoffending, with the potential for serious injury or death to victims. While acknowledging considerations in favour of revocation, such as international non-refoulement obligations and the prospect of indefinite detention, the Tribunal found that these did not outweigh the significant risk to the Australian community. The Tribunal also noted that a Protection Order related to family violence, while a consideration, could not be given weight due to a lack of procedural fairness in its exploration during the hearing.

Ultimately, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that the nature of the applicant's conduct and the potential harm if it were repeated were so serious that even strong countervailing considerations were insufficient to justify revocation.