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

This matter concerned an application by KCCD (the Applicant) to the Administrative Appeals Tribunal (the Tribunal) for the revocation of a mandatory visa cancellation. The Applicant, a citizen of South Sudan, had failed to pass the character test due to a substantial criminal record, including violent offences. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) was the respondent.

The Tribunal was required to determine whether there was "another reason" why the Applicant's visa should not be refused on character grounds, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This involved considering the primary considerations outlined in Direction 79, including the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, including the Applicant's personal circumstances, his history of trauma, his rehabilitation efforts, and the potential consequences of his return to South Sudan.

The Tribunal's reasoning focused on balancing the seriousness of the Applicant's offending history against his progress and circumstances. It acknowledged the Applicant's significant offending, including violent offences, but also gave considerable weight to evidence regarding his mental health issues, including PTSD symptoms, and his insecure attachment style, which were linked to his past trauma and experiences. The Tribunal accepted that the Applicant had made substantial rehabilitation efforts, including abstinence from drugs and alcohol, and had demonstrated insight into the causes of his offending. It concluded that the risk of him reoffending in a serious or violent manner was at the low end of the risk spectrum, and the risk of harm to the community was not unacceptable. Crucially, the Tribunal found that the best interests of the Applicant's son weighed heavily in favour of revocation, and that a significant adverse impact on his broader family, including his partner and mother, would result from non-revocation.

The Tribunal was satisfied that the Applicant did not pass the character test due to his substantial criminal record. However, exercising its discretion under section 501CA(4)(b)(ii) of the Act, the Tribunal revoked the mandatory cancellation of the Applicant's visa. The Tribunal concluded that, in all the circumstances, the risk of harm to the community was not unacceptable, and that the best interests of the Applicant's son, along with other significant personal and family considerations, constituted "another reason" for revocation.