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

This matter concerned an application by KFTJ (the Applicant) to review the mandatory cancellation of his Protection (Class XA) (Subclass 866) visa under section 501CA(4) of the *Migration Act 1958* (Cth). The Applicant, a citizen of Iran, had been granted the visa in 2012. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record, stemming from convictions in 2017 for offences including demanding money with intent to steal, making threats to kill, and intentionally damaging property by fire. The Applicant sought to have the discretion to revoke the cancellation exercised in his favour.

The court was required to determine whether the discretion to revoke the visa cancellation should be exercised, specifically by considering the Applicant's conduct to date and the risk to the Australian community should the Applicant commit further offences. This assessment was to be undertaken in accordance with Ministerial Direction No. 99, which outlines the principles and considerations for decision-makers in such cases, including the protection of the Australian community and the non-citizen's risk of re-offending.

In its reasoning, the court examined the nature and seriousness of the Applicant's past conduct, noting the sentencing judge's findings regarding the aggravating factors and the financial motivation behind the offences. The court also considered the potential harm to the Australian community if the Applicant were to re-offend, referencing the victim impact statement which detailed the ongoing fear and psychological distress experienced by the victim and his family. The court acknowledged that the Applicant's criminal history involved conduct that, if repeated, could cause significant harm, including the risk of death or serious injury from arson and threats. The court also considered the likelihood of further offending, taking into account evidence of rehabilitation and time spent in the community since the most recent offence.

Ultimately, the court found that the decision under review was affected by error and set aside the mandatory cancellation of the Applicant's visa.