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

This matter concerned an applicant, DGKW, who held a Class XB subclass 202 global special humanitarian visa. The applicant's visa was cancelled due to a substantial criminal record. The delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused to revoke this mandatory cancellation. The Administrative Appeals Tribunal (AAT) was required to consider whether there was another reason to revoke the cancellation.

The primary legal issues before the Tribunal were whether youth detention constituted "imprisonment" for the purposes of section 501(12) of the *Migration Act 1958* (Cth), and consequently, whether the mandatory cancellation of the applicant's visa was enlivened under section 501(3A)(b) of the Act. The Tribunal also considered the relevance of the Federal Court decision in *Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2022] FCA 653, and the application of Ministerial Direction No 90, which outlines the considerations for visa cancellation decisions, including the protection of the Australian community, the best interests of minor children, and international non-refoulement obligations.

The Tribunal, applying the authority of *Nuon*, determined that detention in a youth justice centre, as experienced by the applicant, fulfilled the definition of "imprisonment" under section 501(12) of the Act. The Tribunal reasoned that such detention, even for a minor, carries a punitive character, aligning with dictionary definitions of "punitive" and the High Court's observations in *Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs* (1992) 176 CLR 1, that involuntary detention by the State is generally penal or punitive. Having found that the discretion to revoke the mandatory cancellation was enlivened, the Tribunal then considered the factors under Ministerial Direction No 90.

The Tribunal set aside the reviewable decision of the delegate and substituted a new decision. The Tribunal decided that the applicant's Class XB Subclass 202 Global Special Humanitarian visa was not cancelled.