Juma and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had failed the character test due to a substantial criminal record, having been sentenced to a total of 16 months imprisonment. The applicant sought revocation of the cancellation, arguing that non-refoulement obligations arose due to risks he would face upon return to South Sudan, stemming from his Dinka tribal background and the ongoing ethnic conflict there.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by the Act, and second, whether there was any other reason why the mandatory cancellation of his visa should be revoked. In relation to the character test, the Tribunal considered the applicant's criminal record, noting that a sentence of 12 months or more imprisonment constituted a substantial criminal record under section 501(7)(c) of the Migration Act 1958.

The Tribunal found that the applicant did not pass the character test due to his substantial criminal record. In considering whether to revoke the cancellation, the Tribunal applied the principles outlined in Ministerial Direction No. 65, focusing on the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal acknowledged the seriousness of the applicant's offending, which involved violence, and assessed the risk of re-offending. Despite submissions regarding the applicant's potential risks in South Sudan, the Tribunal ultimately affirmed the original decision not to revoke the visa cancellation.