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

This matter concerned the Administrative Appeals Tribunal's review of the mandatory cancellation of the applicant's, HKDM, Class BF Transitional (permanent) visa. The applicant, a citizen of Germany born in what is now Poland, had his visa cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs due to a substantial criminal record, including convictions for offences resulting in death and life imprisonment, and sentences of 12 months or more. HKDM made representations to a different delegate seeking revocation of the cancellation, which were refused, leading to the application for review by the Tribunal.

The primary legal issue before the Tribunal was whether there was an "other reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of HKDM's visa. This required the Tribunal to consider the Ministerial Direction, specifically the primary consideration of protecting the Australian community from criminal or other serious conduct, and the nature and seriousness of the applicant's offending, including the sentences imposed. A secondary issue arose regarding the Tribunal's procedure when the applicant became distressed and refused to give further evidence during the hearing, with the parties consenting to the matter being determined on the submitted evidence and papers.

The Tribunal reasoned that it was obliged to consider the Ministerial Direction, which mandates consideration of the nature and seriousness of the conduct, including violent crimes and the sentences imposed. The Tribunal acknowledged HKDM's serious and violent offending, particularly involving firearms and resulting in deaths, and noted the lengthy prison sentences. The Tribunal also considered evidence from Mr JS, who had been appointed as HKDM's Enduring Power of Attorney and medical treatment decision maker, and who provided details about HKDM's health, age, and the management of his affairs, including the demolition and sale of his property. Regarding the procedural issue, the Tribunal determined that hearing further oral evidence from Mr JS was important before it could be satisfied that the issues could be decided without further oral evidence. After Mr JS gave evidence, the Tribunal decided to conclude the hearing and proceed to make a decision based on the evidence and written closing submissions, a course of action supported by both parties and deemed consistent with the Tribunal's objective of providing an efficient review mechanism while according procedural fairness.

The Tribunal ultimately set aside the decision under review and substituted a new decision.