Kim and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Kim against a decision by a delegate of the Minister for Home Affairs to affirm the mandatory cancellation of his visa. Mr Kim, who had resided in Australia for 22 years, had his visa cancelled due to having a substantial criminal record, specifically convictions for contravening an Apprehended Domestic Violence Order and assaulting his stepdaughter. The delegate's decision to affirm the cancellation was under review by the court.

The court was required to determine whether the mandatory cancellation of Mr Kim's visa should be revoked. This involved considering the primary considerations outlined in Direction No. 79, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of Mr Kim's conduct, the risk to the Australian community, the best interests of his minor child, and the expectations of the Australian community. The court also had to weigh other considerations, such as the strength, nature, and duration of Mr Kim's ties to Australia and any impediments he might face if removed from Australia.

In reaching its decision, the court considered the evidence presented, including Mr Kim's personal circumstances, his remorse, and the opinions of a clinical psychologist. The psychologist noted Mr Kim's acceptance of responsibility, his cessation of alcohol consumption, and his potential for rehabilitation, while also highlighting his autistic traits and the need for professional treatment. The court acknowledged Mr Kim's significant ties to Australia, his role as a sole carer for his daughter for many years, and his business endeavours. However, it found that the risk to the Australian community posed by Mr Kim's conduct was unacceptable, particularly in light of his repeated breaches of domestic violence orders. Despite acknowledging the potential benefit to his daughter if he remained in Australia, the court concluded that the primary considerations weighed against revocation.

Consequently, the court affirmed the reviewable decision, meaning the mandatory cancellation of Mr Kim's visa was upheld.