Khamisi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Mr. Khamisi for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of his Class XB Subclass 200 Refugee Visa. The cancellation was based on Mr. Khamisi failing to pass the character test due to having a substantial criminal record, specifically for aggravated people smuggling, assault in company, destroying property, and driving offences. The parties did not dispute that Mr. Khamisi possessed a substantial criminal record and therefore did not pass the character test.

The Tribunal was required to determine whether there was another reason why the original decision to cancel Mr. Khamisi's visa should be revoked, in accordance with section 501CA(4) of the *Migration Act 1958* (Cth). This determination involved applying Ministerial Direction No. 90, which outlines the primary and other considerations to be taken into account when assessing such applications. The key legal issues revolved around the weight to be given to the protection of the Australian community from criminal activity and the best interests of minor children in Australia affected by the decision, balanced against Mr. Khamisi's personal circumstances and his contributions to the Mandaean community.

In its reasoning, the Tribunal acknowledged the seriousness of Mr. Khamisi's offending, particularly aggravated people smuggling, which carries significant penalties and is viewed very seriously by the Australian Government and community. The Tribunal also considered the best interests of Mr. Khamisi's niece and three nephews in Australia, noting the applicant's stated desire for strong relationships and the importance of maintaining cultural and religious connections within the Mandaean faith. The Tribunal noted that the respondent's counsel conceded that no weight should be given to the family violence consideration. The Tribunal ultimately affirmed the reviewable decision, meaning the visa cancellation was not revoked.