KYMM and Minister for Home Affairs (Migration)

This matter concerned an appeal by KYMM against the mandatory cancellation of his Refugee and Humanitarian (Class XB) Subclass 202 Global Special Humanitarian visa. The cancellation was based on KYMM having a substantial criminal record, which meant he failed the character test under section 501(3A) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal was required to determine whether there was another reason why the original decision to cancel the visa should be revoked, having regard to Direction No. 79.

The legal issues before the Tribunal were whether KYMM had a substantial criminal record, thereby failing the character test, and if so, whether there were other reasons to revoke the mandatory visa cancellation. In considering the latter, the Tribunal was obliged to apply Direction No. 79, which outlines primary and other considerations relevant to such a decision, including the protection of the Australian community, the expectations of the Australian community, international non-refoulement obligations, the strength and duration of ties to Australia, and the extent of impediments if removed from Australia.

The Tribunal reasoned that KYMM possessed a substantial criminal record, evidenced by numerous offences committed between August 2011 and September 2018, including serious offences such as robbery and assault, and a conviction for robbery for which he received a 12-month sentence of detention in a youth training centre. This record, coupled with his consistent disregard for judicial sanctions and his inability to articulate credible strategies to avoid future offending, led the Tribunal to conclude that he failed the character test. While acknowledging that impediments to removal might favour KYMM, the Tribunal found that his extensive criminal history and the risk posed to the Australian community outweighed other considerations, and therefore, there was no other reason to revoke the visa cancellation.