Jayba and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of Mr Jayba's visa. Mr Jayba held a refugee and humanitarian visa and had a substantial criminal record, which triggered the character test under the *Migration Act 1958* (Cth). The decision was made by Deputy President B W Rayment of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister's decision to refuse to revoke the mandatory cancellation of Mr Jayba's visa was correct or preferable. This required the Tribunal to consider the various primary and "other" considerations outlined in Ministerial Direction No. 65, including the protection of the Australian community, the interests of minor children, and the meaning of "particularly serious crime." The Tribunal also had to assess the risk of Mr Jayba reoffending and whether non-refoulement obligations were owed.

Deputy President Rayment reasoned that the "other" considerations weighed heavily in favour of Mr Jayba's release into the community. These included the significant period of detention already served, the instability and violence of his country of origin where he had no support, the permanent separation from his family and daughters, and the risk to his life if returned. The Tribunal found a low to moderate risk of reoffending and noted the potential for rehabilitation in Australia, where Mr Jayba had resided for a considerable time. Balancing these factors against the primary considerations, the Deputy President concluded that the reviewable decision should be set aside.

The Tribunal ordered that the reviewable decision be set aside and remitted for reconsideration, with a direction that the discretion under s.501CA(4) of the *Migration Act 1958* (Cth) be exercised in favour of the applicant.