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

This matter concerned an application by GQHJ to the Administrative Appeals Tribunal (Tribunal) for review of a decision not to revoke the mandatory cancellation of his Refugee (Class XB) Subclass 200 visa. The visa had been mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to GQHJ having a substantial criminal record, specifically a conviction for ‘Robbery in company’ for which he was sentenced to imprisonment for 12 months or more. GQHJ sought revocation of this cancellation decision, which was refused by a delegate of the Minister, leading to the application for review by the Tribunal.

The Tribunal was required to determine two key issues: first, whether GQHJ passed the character test as defined in s 501(6) of the Act; and second, if he did not pass the character test, whether there was "another reason" why the original decision to cancel his visa should be revoked under s 501CA(4) of the Act. In considering the second issue, the Tribunal was guided by Ministerial Direction 110, which outlines primary considerations including the protection of the Australian community, family violence, ties to Australia, the best interests of minor children, and community expectations. The Direction also specifies that the protection of the Australian community is generally to be given greater weight than other primary considerations.

The Tribunal found that GQHJ did not pass the character test due to his criminal convictions, including the significant conviction for ‘Robbery in company’. In assessing whether there was "another reason" to revoke the cancellation, the Tribunal considered the primary considerations under Direction 110. While acknowledging GQHJ's difficult childhood experiences, including war, loss of family, and racism in Australia, the Tribunal gave significant weight to the primary consideration of protecting the Australian community from criminal conduct. The Tribunal concluded that these factors did not outweigh the risk posed to the community by GQHJ's criminal history.

Ultimately, the Tribunal decided to affirm the decision under review, meaning it upheld the refusal to revoke the visa cancellation. Consequently, GQHJ's application to the Tribunal was unsuccessful, and his visa remained cancelled.