HSKJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal by the applicant, an Iraqi citizen, against the mandatory cancellation of his visa. The applicant had a substantial criminal record, meaning he did not meet the character test under section 501(6)(a) of the *Migration Act 1958* (Cth). The primary legal issue before the court was whether the discretion to revoke the mandatory cancellation of the applicant's visa should be exercised, considering both primary and other considerations, including Australia's non-refoulement obligations.

The court was required to determine if the applicant's ties to Australia, the impediments he would face if removed, and other relevant considerations outweighed the primary considerations that led to the mandatory cancellation. The applicant had a history of trauma, including abduction and violence in Iraq, and had arrived in Australia as a young refugee with poor English skills, which contributed to his subsequent criminal conduct. The court also had to consider the impact of the applicant's removal on his sisters, who were Australian citizens and relied on him.

In its reasoning, the court applied the principles outlined in section 501CA of the *Migration Act 1958* (Cth), which requires consideration of primary factors such as the protection of the Australian community and the best interests of minor children, as well as other considerations. The court found that while the applicant's criminal record was a significant factor, his deeply entrenched ties to Australia, the severe impediments to his reintegration in Iraq due to his trauma and lack of connections, and the impact on his sisters were compelling reasons to revoke the cancellation. The court concluded that these other considerations outweighed the primary considerations favouring cancellation.

The court ordered that the decision to refuse to revoke the mandatory cancellation of the applicant's visa be set aside.