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

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal for review of the Minister's decision not to revoke the mandatory cancellation of his Class BF transitional (Permanent) visa. The Applicant did not pass the character test due to his extensive criminal history, which commenced in 1987 when he was approximately 16 years old and included numerous convictions for assault, stealing, property damage, drug offences, and breaches of court orders.

The primary legal issue before the Tribunal was whether the discretion to revoke the visa cancellation should be exercised, having regard to Ministerial Direction No. 90. This required the Tribunal to consider the primary considerations of protection of the Australian community and the best interests of minor children, as well as any other considerations. The Tribunal was tasked with weighing the Applicant's criminal conduct and the risk he posed to the community against other factors, including his personal circumstances and prospects for rehabilitation.

The Tribunal acknowledged the seriousness and extensive nature of the Applicant's offending, particularly violent crimes and those committed while on bail or bonds. However, it also took into account the Applicant's frank evidence, his admission of past wrongdoing, his expressed desire for self-improvement, and his vulnerability due to substance dependency and a lack of a positive support network. The Tribunal noted his disclosure of past trauma and the positive impact of counselling he had received. Applying Ministerial Direction No. 90, the Tribunal found that the "other considerations" in this case outweighed the "primary considerations," leading it to exercise its discretion to revoke the cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a new decision revoking the cancellation of the Applicant's visa.