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

The Administrative Appeals Tribunal (AAT) reviewed 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's visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, specifically convictions for armed robbery and aggravated assault involving the hijacking of a vehicle with a mother and her two children. The Applicant sought review of this decision, arguing for revocation of the cancellation.

The Tribunal was required to determine whether the mandatory cancellation of the Applicant's visa should be revoked, applying the considerations outlined in Direction No. 79. This involved weighing primary and other considerations, including the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, and any other substantial reasons for revocation. The Tribunal also had to consider the Applicant's history of drug use, his limited rehabilitation attempts, and the potential impact of removal on his ongoing methadone treatment, noting the absence of evidence regarding treatment options available in his country of removal.

In its reasoning, the Tribunal acknowledged the seriousness of the Applicant's offending, particularly the car-jacking incident which caused acute mental trauma to the victims. It also considered the Applicant's long history of offending, including juvenile convictions and adult convictions for drug-related offences. However, the Tribunal noted that the Applicant's earlier offending was not physically violent and that the recent offending, while serious, did not involve actual physical harm. The Tribunal also considered the Applicant's stated intention to seek mental health support and the lack of evidence regarding the availability of his methadone treatment if removed from Australia. The Tribunal found that the Respondent had a duty to provide information regarding such treatment options, which was not met.

The Tribunal ultimately set aside the decision under review and substituted a new decision to revoke the mandatory cancellation of the Applicant's visa. This outcome was based on the Tribunal's assessment that, when all relevant considerations were weighed, there were substantial reasons to revoke the cancellation, particularly in light of the lack of evidence concerning the availability of essential medical treatment upon removal and the Respondent's failure to provide such information.