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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of India, had resided in Australia for approximately 25 years and possessed a Class BB Subclass 155 Five Year Resident Return visa. The Minister's decision was based on the applicant's substantial criminal record, which spanned from 1998 to 2019 and included offences involving violence, dishonesty, property damage, and drunk-driving, culminating in significant custodial sentences. The applicant had previously been warned in 2004 that further offending due to alcohol abuse would weigh heavily against him if his case was reconsidered.

The Administrative Appeals Tribunal was required to determine whether there was another reason why the mandatory visa cancellation should be revoked, considering the applicant's representations and applying Ministerial Direction No. 90. The applicant contended that impediments to his removal to India included the deterioration of his mental and physical health, the risk of contracting COVID-19 or other infections in an over-stretched Indian health system, the absence of family or social support, and an inability to find work due to his age and comorbidities. He also raised concerns about separation from friends and support networks in Australia and the lost opportunity to rebuild relationships with his family there.

The Tribunal considered the applicant's submissions regarding impediments to his removal, including his health conditions and concerns about the COVID-19 pandemic. It noted that the applicant had not provided specific expert evidence to substantiate all his health claims, such as macular degeneration. The Tribunal also examined the applicant's assertions about the inadequacy of COVID-19 precautions in Australian immigration detention. Applying Ministerial Direction No. 90, which outlines factors to consider when deciding whether to revoke a mandatory visa cancellation, the Tribunal weighed the applicant's circumstances against the public interest considerations, including the need to protect the community from individuals with a substantial criminal record.

Ultimately, the Tribunal affirmed the Minister's decision not to revoke the visa cancellation. The Tribunal found that the applicant's criminal history was extensive and serious, and that the impediments he raised were not sufficiently compelling to outweigh the public interest in cancelling his visa. The Tribunal concluded that there was no other reason why the original cancellation decision should be revoked.