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

This matter concerned an application by the Applicant, Mr. Elkhouli, to the Administrative Appeals Tribunal for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse to revoke the mandatory cancellation of his visa. The Applicant did not dispute that he failed the character test due to a substantial criminal record, meaning the sole issue for the Tribunal was whether there was another reason to revoke the visa cancellation.

The Tribunal was required to determine if there was "another reason" to revoke the mandatory visa cancellation, as contemplated by s 501CA(4) of the Migration Act 1958 (Cth). This involved weighing various considerations, including the protection of the Australian community, the risk of reoffending, the best interests of the Applicant's minor children, and the Applicant's links to the Australian community, against the seriousness of his criminal conduct.

In its reasoning, the Tribunal considered the Applicant's criminal history, which included numerous fraud offences committed in 2009 and serious offences of arson and perverting the course of justice in 2017. The Tribunal acknowledged the gravity of these offences, particularly the arson which involved a reckless disregard for public safety and caused significant damage and injury. However, the Tribunal also found that the Applicant's risk of recidivism was low to moderate, that he had significant ties to Australia, and that the best interests of his children weighed heavily in favour of revocation. After carefully balancing all the evidence and considerations, the Tribunal concluded that the balance weighed in favour of revocation.

Consequently, the Tribunal set aside the decision of 24 December 2021 and substituted it with a decision to revoke the cancellation of the Applicant's Partner (Class BS) (Subclass 801) visa.