KMWC and Minister for Immigration, Citizenship, Migrant Services and Multicultural 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, KMWC, had failed to pass the character test, leading to the cancellation of his Class XE Subclass 790 Safe Haven Enterprise Visa. The dispute before the Administrative Appeals Tribunal (AAT) was whether there was "another reason" why the visa cancellation should be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the applicant had established "another reason" warranting the revocation of the visa cancellation, considering the factors outlined in Ministerial Direction No. 79. These factors included the nature and seriousness of the applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and any international non-refoulement obligations or impediments to removal.

The Tribunal reasoned that while the applicant had a significant criminal record, including serious violent offences, the cumulative nature of his offending and the increasing seriousness over time were noted. However, the Tribunal also considered the applicant's evidence regarding his strong ties to family in Iran and Canada, his conversion to Christianity, and his stated fear of persecution in Iran due to his sexuality and faith. The psychologist's report highlighted the detrimental impact of prolonged detention on the applicant's mental wellbeing and the potential for persecution if deported to Iran. Weighing all the considerations under Direction 79, the Tribunal concluded that the balance favoured the revocation of the delegate's decision.

Consequently, the Tribunal set aside the delegate's decision and substituted a new decision revoking the mandatory cancellation of the applicant's visa.