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

This matter concerned an application for review of the mandatory cancellation of the Applicant's Class XB Global Special Humanitarian visa. The Minister's delegate had cancelled the visa on the basis that the Applicant had a substantial criminal record. The Applicant sought revocation of this decision, arguing that his sentence for a criminal offence had been reduced on appeal, and that he passed the character test. The Tribunal was required to determine whether the Applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation decision.

The Tribunal considered whether the Applicant passed the character test, particularly in light of the reduced sentence and the potential for other adverse character criteria to be considered. The Tribunal also examined evidence of the Applicant's conduct in prison and immigration detention, including assaults on staff and involvement in other incidents. Furthermore, the Tribunal reviewed psychological reports concerning the Applicant's mental health and alcohol abuse, which were relevant to his rehabilitation prospects and the risk of future offending.

In its reasoning, the Tribunal found that there was more than a minimal or remote chance that the Applicant would engage in future criminal conduct if allowed to remain in Australia. This conclusion was based on the Applicant's lack of insight and inconsistent engagement with treatment for alcohol abuse and mental health issues, which were identified as key factors in his offending behaviour. Despite acknowledging the Applicant's remorse and his stated willingness to participate in English classes and further study, the Tribunal found that these factors were outweighed by the risk of reoffending. The Tribunal applied the principles outlined in Direction No. 90, which emphasise Australia's sovereign right to determine who remains in the country and the community's expectation that non-citizens with serious character concerns will not be permitted to stay.

The Tribunal concluded that the circumstances in paragraph 501(6)(d)(i) of the Migration Act 1958 (Cth) applied to the Applicant, meaning he did not pass the character test. Consequently, the Tribunal affirmed the decision to cancel the Applicant's visa and did not exercise the discretion to revoke the mandatory cancellation.