Doan and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse to revoke the mandatory cancellation of the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant had failed to pass the character test due to having a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. The applicant contended that there was another reason why the cancellation decision should be revoked, and the Tribunal was required to consider the application of Direction No. 65, which guides decision-makers on how to assess the expectations of the Australian community.

The primary legal issue before the Tribunal was whether there was "another reason" why the visa cancellation decision should be revoked, notwithstanding the applicant's failure to pass the character test. This required the Tribunal to assess the evidence presented, including expert opinion on the applicant's risk of reoffending, and to weigh this against the protection of the Australian community from criminal or other serious conduct, as mandated by Direction No. 65. The Tribunal also had to consider the nature and seriousness of the applicant's conduct, the risk of future offending, and the expectations of the Australian community.

The Tribunal considered evidence from a psychologist, Mr. Watson-Munro, who assessed the applicant as presenting a "low" risk of reoffending, noting strengthened family bonds and the applicant's maturation. However, the Tribunal also had regard to the applicant's criminal offending, the sentence imposed, and the principles outlined in Direction No. 65 regarding serious crimes and the protection of the community. Despite the expert opinion on reduced reoffending risk, the Tribunal ultimately found that the Minister's delegate's decision to refuse to revoke the visa cancellation was correct, and therefore affirmed the decision under review.