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

This matter concerned an application by HMYN (the applicant) to review the mandatory cancellation of his visa by the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant failed to pass the character test due to a substantial criminal record, leading to the cancellation of his visa. The applicant sought to have this decision revoked, arguing that there was another reason why the original decision should not stand. The case was heard by Mrs J C Kelly, Senior Member.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation decision should be revoked, pursuant to section 501CA(4) of the Migration Act 1958 (Cth). This required the Tribunal to consider various factors, including the protection of the Australian community, the strength, nature, and ties to Australia, and the expectations of the Australian community, as guided by Direction No. 99.

The Tribunal considered the applicant's criminal conduct, noting a history of offences between 2018 and 2022 involving offensive and threatening behaviour, often directed at individuals of Indian/Nepalese appearance. The seriousness of these offences was underscored by a 12-month Intensive Correction Order imposed for more recent offending, which the sentencing magistrate described as crossing a threshold and posing a serious threat to innocent people. However, the Tribunal also took into account the applicant's engagement with mental health treatment and substance abuse programs, and the potential for him to maintain these while residing in the community. The Tribunal concluded that these latter considerations outweighed the risk to the community and the other factors, finding that there was another reason to revoke the mandatory cancellation.

The Tribunal set aside the reviewable decision and substituted a new decision that the mandatory visa cancellation should be revoked under section 501CA(4) of the Act.