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

This matter concerned an application by DXJL for the revocation of a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship, and Multicultural Affairs. The cancellation was based on DXJL's criminal offending and serious misconduct, including convictions for home invasions, theft, and possession of methylamphetamine. DXJL conceded that he did not meet the character requirements for remaining in Australia. The dispute before the Tribunal was whether there was another reason to revoke the mandatory cancellation decision, considering DXJL's circumstances, including his likely exposure to harm and impediments if removed to South Sudan, and his strong ties to the Australian community, having arrived in Australia at the age of two and remained there since.

The Tribunal was required to determine whether the primary considerations, namely the protection of the Australian community from criminal or serious conduct and the expectations of the Australian community, outweighed any countervailing considerations in favour of revoking the visa cancellation. In making this determination, the Tribunal was guided by Direction 90, which outlines the primary considerations and "other considerations" to be taken into account, such as international non-refoulement obligations, impediments to removal, and the applicant's links to the Australian community. The Tribunal was also directed to consider broad guiding principles, including Australia's sovereign right to determine who remains in the country and the expectation that non-citizens will be law-abiding.

The Tribunal reasoned that while DXJL's criminal conduct was serious, and the protection of the Australian community and community expectations weighed heavily against revocation, other considerations were significant. DXJL had arrived in Australia at a very young age and had lived there for most of his life, establishing strong ties to the Australian community. Furthermore, there was evidence suggesting he would face harm and impediments if removed to South Sudan, and he lacked documentation linking him to that country. Despite these countervailing factors, the Tribunal ultimately found that the primary considerations of protecting the Australian community and the expectations of the Australian community outweighed the considerations favouring revocation.

Consequently, the Tribunal affirmed the decision under review, meaning the mandatory visa cancellation was not revoked. This outcome renders DXJL an unlawful non-citizen, liable for removal from Australia as soon as reasonably practicable and subject to detention in the interim, unless he is granted another visa.