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

This matter concerned an appeal by applicant FJTB against the mandatory cancellation of his Global Special Humanitarian (Class XB) (Subclass 200) visa. The cancellation was based on FJTB failing to pass the character test due to his criminal record. The decision-maker was required to consider whether there was another reason to revoke the cancellation, applying Ministerial Direction No. 90.

The primary legal issues before the Tribunal were whether FJTB’s criminal conduct, specifically his convictions for affray, harassment of a witness, and intentionally causing serious injury, warranted the mandatory cancellation of his visa, and if so, whether any countervailing considerations were sufficient to justify its revocation. This involved assessing the nature and seriousness of his offending, the protection of the Australian community, the best interests of minor children affected by the decision, and the expectations of the Australian community.

The Tribunal considered FJTB's personal circumstances, including his difficult upbringing, reliance on his late mother, and his engagement with services and authorities following his offending. It noted that while FJTB’s criminal record was significant, including a custodial sentence, his more recent history of good conduct and engagement with support services suggested a potential for rehabilitation. The Tribunal also considered the impact of deportation on FJTB's younger siblings, who relied on him for financial and emotional support. Applying Ministerial Direction No. 90, the Tribunal found that while the protection of the Australian community and community expectations weighed against revocation, the best interests of the minor children and FJTB's demonstrated efforts towards rehabilitation were significant countervailing factors.

Ultimately, the Tribunal set aside the decision to cancel FJTB's visa and substituted it with a decision to revoke the mandatory cancellation.