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

This matter concerned an application for review by the Applicant, DJTW, of the decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Applicant, a New Zealand citizen, had resided in Australia since childhood and had a history of mental health issues, substance abuse, and criminal offending, including a recent conviction for recklessly causing injury for which he received a custodial sentence. The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, considering the Applicant's circumstances against the framework provided by Direction 90.

The Tribunal was tasked with assessing various considerations, including the protection of the Australian community from criminal or serious conduct, the expectations of the Australian community, the Applicant's links to Australia, and the extent of impediments to his removal. Central to the assessment were the Applicant's significant mental health challenges, including diagnoses of schizophrenia and intellectual disability, his history of substance abuse, and his claims of non-refoulement obligations. The Tribunal also had to weigh the Applicant's remorse and stated desire for rehabilitation against the seriousness of his offending and the need to uphold community safety.

In its reasoning, the Tribunal applied the principles outlined in Direction 90, which mandates consideration of both primary and other factors. The Tribunal acknowledged Australia's sovereign right to determine who remains in the country and the community's expectation that individuals with serious character concerns will not be permitted to stay. While recognising the Applicant's long ties to Australia and his mental health issues, the Tribunal found that the seriousness of his criminal conduct, particularly the stabbing incident, and the community's expectations regarding such behaviour, outweighed the countervailing considerations. The Tribunal noted that the Applicant's claim of being a victim of sexual assault was previously found to be "plainly false" by a judge.

Ultimately, the Tribunal affirmed the decision not to revoke the mandatory visa cancellation. The Tribunal concluded that the primary considerations, particularly the protection of the Australian community and the expectations of the Australian community, were not outweighed by the other considerations, such as the Applicant's links to Australia or the potential impediments to his removal.