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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant’s visa. The applicant, a citizen of Iraq who arrived in Australia as a minor, had a substantial criminal record, including convictions for offences committed as an adult, which led to the mandatory cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal was required to determine whether the discretion to revoke the mandatory cancellation should be exercised.

The Tribunal was tasked with considering the primary considerations and other considerations as outlined in Ministerial Direction No. 79. Specifically, the Tribunal had to assess the protection of the Australian community from harm, the nature and seriousness of the applicant's conduct, and the risk of future offending. It also had to consider the expectations of the Australian community regarding non-citizens who are expected to be law-abiding and respect Australian institutions. The applicant also presented evidence of a well-founded fear of returning to Iraq due to threats from a militia group, stemming from his family's involvement with the post-Saddam Hussein government and its association with American forces.

In its reasoning, the Tribunal applied the principles set out in Ministerial Direction No. 79, which mandates consideration of the seriousness of the offending, the risk to the community, and the expectations of the Australian public. The Tribunal considered the applicant's criminal history, including a serious offence of kidnapping committed when he was 19 years old, for which he received a significant custodial sentence. However, the Tribunal also gave weight to the applicant's evidence regarding the severe personal risk he would face if returned to Iraq, including the threat of assassination by a militia group. This evidence was considered in the context of the overall assessment of whether the mandatory cancellation should be revoked.

Ultimately, the Tribunal set aside the decision under review. The Tribunal found that the risk to the applicant's life in Iraq was a significant factor that weighed against the decision to refuse to revoke the visa cancellation. The Tribunal's decision indicates that while the applicant's criminal record was serious, the compelling evidence of personal danger upon return to his country of origin was a decisive consideration in exercising the discretion to revoke the mandatory cancellation.