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

This matter concerned an application for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to affirm the non-revocation of a mandatory cancellation of the Applicant's Resident Return (Class BB) (Subclass 155) visa. The Applicant did not pass the character test due to a substantial criminal record. The central dispute revolved around whether the discretion to refuse to grant the visa should be exercised in the Applicant's favour, considering Ministerial Direction No. 90 and Australia's international non-refoulement obligations. The decision was made by a Senior Member of the Tribunal.

The legal issues before the Tribunal were whether the Applicant's conduct was of a "very serious" nature, and what risk he posed to the Australian community if he were to re-offend. The Tribunal was required to consider the nature of the harm that could result from any further criminal or serious conduct by the Applicant, the likelihood of such re-offending, and any mitigating factors related to the duration and purpose of any intended stay. Additionally, the Tribunal had to assess the relevance of the Applicant's history of violence, substance abuse, trauma, mental illness, relationship problems, lack of employment, and past difficulties with supervision, as well as any protective factors such as the late onset of his violent conduct.

The Tribunal's reasoning was guided by Ministerial Direction No. 90, which outlines the framework for decision-making under section 501 of the *Migration Act 1958* (Cth). The Tribunal noted that Australia has a sovereign right to determine who remains in the country and that non-citizens engaging in serious conduct should expect to forfeit their privilege of staying. The Direction mandates consideration of "Primary Considerations" including protection of the Australian community, family violence, best interests of minor children, and community expectations, as well as "Other Considerations" such as international non-refoulement obligations and links to the Australian community. The Tribunal found that the totality of the Applicant's offending could be characterised as "very serious," and that any re-offending, particularly in relation to violence, could lead to significant physical harm, and property offences could result in quantifiable loss. The Tribunal also considered evidence from Dr. Nina Zimmerman, who assessed the Applicant's recidivist risk using the HCR-20 version three testing tool, identifying several risk factors that needed addressing.

The Tribunal affirmed the decision under review.