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

The Administrative Appeals Tribunal considered the case of HSRN and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the mandatory cancellation of the applicant's visa. The applicant, a non-citizen who arrived in Australia at approximately 10 years of age and had resided in the country for approximately 47 years, had his visa cancelled due to failing the character test. The central dispute was whether there was another reason why the visa cancellation should be revoked, with the Tribunal required to consider Ministerial Direction No. 90.

The Tribunal was tasked with determining whether the applicant's long period of residence in Australia, the strength and duration of his ties to the country, the nature and seriousness of his offending conduct, the risk of reoffending, and the expectations of the Australian community constituted grounds for revoking the visa cancellation. Specifically, the Tribunal had to weigh the seriousness of the applicant's most significant offence, sexual intercourse without consent, against other factors, including his personal circumstances and the potential impediments to his removal from Australia.

In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90, considering the applicant's extensive ties to Australia, including his family residing there and his long-term residence since childhood. It noted that while the applicant had committed serious offences, including sexual intercourse without consent and a fire offence, the sentencing remarks from the courts indicated mitigating circumstances, such as the influence of alcohol and drugs, the applicant being at a "very low point in his life," and his acceptance of guilt. The Tribunal also considered the applicant's significant health issues, including HIV and mental illness, and the potential lack of continuity of medical treatment if he were returned to Portugal. Furthermore, the Tribunal found that the applicant had paid his debt to society through his prison sentences and that there was no evidence suggesting he posed a future danger to the community, with his offending not directed at strangers.

Ultimately, the Tribunal concluded that there were significant impediments to the applicant's visa remaining cancelled. Taking into account the totality of the circumstances, including the applicant's long residence, strong family ties in Australia, health concerns, and the mitigating factors surrounding his offending, the Tribunal determined that the cancellation of his visa was not justified. The Tribunal set aside the decision to cancel the visa and substituted a decision to revoke the cancellation.