FLLB and Minister for Home Affairs (Migration)

This matter concerned an application for review of the mandatory cancellation of the applicant's Class XB Subclass 202 Global Special Humanitarian visa. The applicant, born in 1990 and a citizen of South Sudan, arrived in Australia at the age of 17. The visa was mandatorily cancelled due to the applicant failing to pass the character test, specifically following convictions for two counts of assault occasioning actual bodily harm. The applicant sought to have this cancellation decision revoked.

The Tribunal was required to consider Ministerial Direction No 65, which mandates the consideration of several factors when determining whether to revoke a visa cancellation. These included the protection of the Australian community from criminal and other serious conduct, the best interests of minor children (though not explicitly detailed in the provided text, it is listed as a consideration), the expectations of the Australian community, international non-refoulement obligations, the strength, nature, and duration of ties to Australia, and the hardship that would be experienced if removed from Australia. The primary considerations were to be given greater weight.

The Tribunal's reasoning focused heavily on the applicant's extensive criminal history, which commenced in 2011 and included repeated violent offences such as assault occasioning actual bodily harm, assault of police officers, and resisting officers. The sentencing remarks from the Blacktown Local Court highlighted the objective seriousness of the assault offences, noting the significant injuries inflicted on the victim and describing the applicant as a "significant threat to the community." The Tribunal also noted further incidents of serious assault while the applicant was in immigration detention. Despite acknowledging the applicant's ties to Australia through his family and his stated desire to study and work, the Tribunal found that the nature and seriousness of his conduct, and the risk he posed to the Australian community, weighed heavily against revocation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that, on balance, considering both the primary and other considerations, it was not appropriate to revoke the mandatory cancellation decision.