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

The Administrative Appeals Tribunal considered the case of HHKR, the applicant, and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the mandatory cancellation of HHKR's Refugee and Humanitarian (Woman at Risk) visa due to failing the character test, specifically because of a substantial criminal record. HHKR sought to have this cancellation revoked.

The Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation of HHKR's visa, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved assessing the primary and other considerations outlined in a ministerial direction, particularly concerning the protection of the Australian community and the applicant's personal circumstances. The Tribunal had to weigh the seriousness of HHKR's offending against significant impediments he would face if deported to South Sudan.

The Tribunal reasoned that while the applicant's offending, which involved armed robbery and attempted armed robbery committed at a young age, was serious and involved the use of weapons and a degree of premeditation, no single consideration was determinative. The court noted the specific details of the offending, including the use of machetes and a shotgun, and the impact on the victims. However, it also considered the significant impediments HHKR would face if deported to South Sudan, a country he had never lived in and where he had no family support. The Tribunal concluded that these circumstances, when weighed against his offending history, constituted another reason to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the delegate's decision to refuse to revoke the visa cancellation. In substitution, the Tribunal decided to revoke the mandatory cancellation of HHKR's visa.