HSKJ and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by HSKJ against the mandatory cancellation of his visa by the Minister for Immigration and Border Protection. The dispute arose because HSKJ did not pass the character test due to having a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. The court was required to determine whether the discretion to revoke this mandatory cancellation should be exercised in HSKJ's favour.

The legal issues before the Tribunal were twofold: first, whether HSKJ passed the character test as defined in section 501(6) of the Migration Act, and second, if he did not pass the character test, whether the discretion under section 501CA(4) of the Migration Act should be exercised to revoke the mandatory visa cancellation. In considering the second issue, the Tribunal was bound to comply with Ministerial Direction No. 65, which outlines the principles and factors to be applied when deciding whether to revoke a mandatory visa cancellation.

The Tribunal found that it was common ground that HSKJ had a substantial criminal record and therefore did not pass the character test, and that his visa was subject to mandatory cancellation under section 501(3A) of the Migration Act. The Tribunal then considered whether there was "another reason" to revoke the cancellation, as required by section 501CA(4)(b)(ii). In applying Ministerial Direction No. 65, the Tribunal noted the importance of protecting the Australian community from harm, the expectation that non-citizens who commit serious crimes should generally forfeit the privilege of remaining in Australia, and that Australia has a sovereign right to determine who may remain in the country. The Tribunal also considered factors such as the strength, nature, and duration of ties to Australia and the extent of impediments if removed, as well as non-refoulement obligations. Ultimately, the Tribunal affirmed the decision to cancel HSKJ's visa, finding that the mandatory cancellation should not be revoked.