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

This matter concerned an application by KZHP for review of the mandatory cancellation of his global humanitarian visa. The delegate of the Minister for Immigration, Citizenship and Multicultural Affairs had cancelled the visa on the basis that KZHP had a substantial criminal record. KZHP conceded that he had a substantial criminal record, but argued that there was another reason to revoke the cancellation. The Administrative Appeals Tribunal (AAT) was required to determine whether such a reason existed.

The Tribunal was tasked with considering the application of the ministerial direction governing the exercise of the discretion to revoke a mandatory visa cancellation. This involved assessing the primary considerations, including the nature and seriousness of KZHP's conduct, the sentences imposed by the courts, and the frequency and trend of his offending. The Tribunal also had to consider any other relevant considerations in the circumstances of the case, as the list of "other considerations" in the direction was not exhaustive.

The Tribunal found that while KZHP had committed violent crimes, including assaults on emergency workers in youth justice facilities, and his offending history was frequent and showed a trend of increasing seriousness, a significant portion of his offending occurred when he was a minor. The Tribunal noted that the impact of offending by a minor on the visa cancellation exercise could vary depending on the jurisdiction, which it considered an unsatisfactory situation. Ultimately, the Tribunal determined that the fact that most of his offending occurred as a minor, coupled with impediments he would face if removed to the Republic of South Sudan, constituted another reason to revoke the mandatory cancellation of his visa.

Accordingly, the Tribunal set aside the decision under review and substituted a new decision revoking the cancellation of KZHP's visa, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).