FGHG and Minister for Home Affairs (Migration)

This matter concerned the mandatory cancellation of a Class UK Subclass 820 Partner (Temporary) visa held by the Applicant, a citizen of Lebanon. The Applicant conceded that he did not pass the character test due to a serious and violent criminal offence. The dispute before the Tribunal was whether the mandatory cancellation of the Applicant's visa should be revoked, considering Ministerial Direction No. 79, which outlines primary and other considerations to be weighed in such decisions.

The Tribunal was required to determine the weight to be given to various considerations under Ministerial Direction No. 79, including the protection of the Australian community, the Applicant's low risk of violent recidivism, the best interests of his minor Australian-born daughter, and the expectations of the Australian community. The Tribunal also had to consider the Applicant's background, which included significant childhood trauma and violence in Lebanon, his positive contributions to the Australian community since his arrival, and the consequences of visa cancellation for his family.

In its reasoning, the Tribunal applied the principles of Ministerial Direction No. 79, which emphasises Australia's sovereign right to determine who remains in the country and the community's expectation that serious offenders will generally forfeit their privilege to remain. However, the Direction also requires consideration of factors such as the length of time a non-citizen has contributed positively to the Australian community and the impact on minor children. The Tribunal found that while the Applicant's offending was serious, expert evidence indicated a low risk of violent recidivism. Crucially, the Tribunal gave significant weight to the Applicant's established life in Australia, his positive contributions, and the profound impact that cancellation would have on his Australian citizen daughter, who relied on him.

Ultimately, the Tribunal determined that the countervailing considerations, particularly the best interests of the minor child and the Applicant's rehabilitation and low risk of reoffending, outweighed the primary considerations for cancellation. Accordingly, the decision under review to cancel the Applicant's visa was revoked.