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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant had a substantial criminal record, including convictions for robbery and armed robbery, which meant he did not pass the character test. The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason why the cancellation should be revoked, considering various primary and other considerations.

The legal issues before the Tribunal included whether the discretion to revoke the mandatory visa cancellation should be exercised. This involved assessing the primary considerations outlined in Direction 99, specifically the protection of the Australian community from criminal or other serious conduct, the strength, nature and duration of the applicant's ties to Australia, the best interests of any minor children, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the legal consequences of the decision and the extent of impediments to the applicant's removal from Australia.

The Tribunal reasoned that while the applicant's offending, particularly the armed robbery involving the threat of a taser, was serious and posed a risk to the community, a comprehensive assessment of all relevant factors warranted the revocation of the visa cancellation. The Tribunal gave significant weight to the applicant's difficult childhood in Somalia, his subsequent trauma, and his efforts towards rehabilitation, including undertaking courses in custody and expressing a genuine desire to turn his life around. His ties to Australia, though not extensive in duration, were strengthened by the presence of his sisters and his desire to form a relationship with his nephew. The Tribunal also considered the significant impediments to his return to Somalia, including ongoing conflict and lack of support. Ultimately, the Tribunal concluded that the applicant had demonstrated sufficient rehabilitation and presented a low risk of reoffending, leading it to set aside the decision not to revoke the visa cancellation.