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

This matter concerned an application by JDDM for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because JDDM did not pass the character test, having a substantial criminal record under section 501(7) and a history of mental illness, specifically schizophrenia. The case was heard by M Griffin QC SM.

The primary legal issue before the court was whether the mandatory cancellation of JDDM's visa should be revoked, considering various factors outlined in Direction No. 79. This involved weighing the seriousness of JDDM's offending and the risk to the Australian community against protective factors, including his reduced culpability due to mental illness and the best interests of his minor children. The court was required to consider obligations of non-refoulement, the strength and duration of ties to Australia, the impact on Australian business interests, the impact on victims, and the extent of impediments JDDM might face if removed from Australia.

The court reasoned that while the seriousness of JDDM's offending and community expectations were significant considerations, particular weight was to be given to his substantially lessened culpability due to his mental health condition and the best interests of his minor children. The court also noted other factors that weighed in JDDM's favour, including the potential impact of removal to Fiji. Ultimately, the court found there was another reason to revoke the mandatory cancellation.

The court set aside the delegate's decision not to revoke the mandatory cancellation of JDDM's visa and, in substitution, decided that the cancellation of his Class BS Transitional (permanent) visa was revoked.