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

This matter concerned an application for the revocation of the cancellation of a Class BB Subclass 155 Five Year Return (Residence) visa. The applicant did not pass the character test due to a past criminal act. The dispute centred on whether the discretion to refuse to grant the visa should be exercised, considering Ministerial Direction No. 90. The applicant had been found to have committed the act charged but was not guilty on the ground of insanity at the time, specifically due to psychosis and substance use. The decision under review was ultimately set aside and substituted.

The court was required to determine the appropriate weight to be given to various considerations under Ministerial Direction No. 90, particularly in light of the applicant's mental state at the time of the offence and the nature of that offence. This involved assessing whether the applicant's conduct, despite being committed while suffering from a psychotic episode, constituted a substantial criminal record for the purposes of the character test, and whether the discretion to refuse the visa should be exercised in his favour. The court also had to consider the principles outlined in the Direction regarding the privilege of remaining in Australia and the community's expectations concerning non-citizens who engage in serious conduct.

The Deputy President found that while the applicant's conduct in causing his mother's death was serious and weighed against the revocation of his visa, the risk of him reoffending was significantly reduced due to his mental health condition and the low likelihood of future violent conduct. The court applied the principles of Ministerial Direction No. 90, noting that while primary considerations generally carry greater weight, "other considerations" can be afforded significant weight if they fall outside the generally applicable circumstances. The court found that the applicant's mental state at the time of the offence, leading to a verdict of not guilty by reason of insanity, was a critical factor that mitigated the risk to the community. The court also considered the applicant's remorse and the diagnosis of paranoid schizophrenia.

The Deputy President found that the applicant had a substantial criminal record and therefore did not pass the character test. However, after considering all relevant primary and other considerations under Ministerial Direction No. 90, the Deputy President found that the discretion to refuse to grant the visa should not be exercised. Consequently, the decision to cancel the applicant's visa was revoked, and the decision under review was set aside and substituted with a decision to grant the visa.