FYVY and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's global special humanitarian visa. The Applicant, a citizen of South Sudan, had resided in Australia since 2003 and did not dispute that he failed to pass the character test due to a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. The central issue before the Tribunal was whether there was "another reason" why the original decision to cancel his visa should be revoked, as permitted by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if there was another reason to revoke the mandatory cancellation, which involved an evaluative process of factors for and against revocation. In exercising this discretion, the Tribunal was bound to follow Ministerial Direction No. 65, which outlines three primary considerations: the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also considered other relevant factors, including international non-refoulement obligations and the extent of impediments to return to the applicant's country of origin.

The Tribunal reasoned that the Applicant's lengthy criminal history and the finding that he was likely to engage in further criminal conduct meant that the expectations of the Australian community strongly weighed against revoking the visa cancellation. While acknowledging the Applicant's difficult childhood circumstances in Sudan and his arrival in Australia as a minor, the Tribunal found that he had not changed his conduct despite opportunities. Regarding the best interests of his minor child, the Tribunal found that the Applicant had played a negligible role in the child's life and that his separation from Australia would have a minimal impact on the child, particularly as a maternal grandfather fulfilled a paternal role. The Tribunal also noted that while the Applicant claimed potential non-refoulement obligations due to his past experiences and political statements in Sudan, the delegate had not assessed this as the Applicant could apply for a protection visa. Ultimately, based on the Applicant's criminal history and past conduct, the Tribunal concluded he was likely to reoffend.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa.