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

This matter concerned an application by LGLH for the revocation of a mandatory visa cancellation. LGLH held a Global Special Humanitarian visa and was born in Sudan. The country of reference for LGLH, in the event of removal from Australia, was determined to be South Sudan. LGLH’s visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test, a concession both parties acknowledged. The central issue before the Tribunal was whether there was another reason to revoke this mandatory cancellation.

The Tribunal was required to determine whether LGLH’s visa cancellation should be revoked, considering the factors outlined in Direction No. 79. This involved weighing the primary considerations, including the protection of the Australian community, the nature and seriousness of LGLH’s offending, the risk of re-offending, and the best interests of affected minor children. The Tribunal also had to consider other relevant factors, such as community expectations and non-refoulement obligations. A key factual determination was whether LGLH was entitled to South Sudanese citizenship by birth, which was relevant to assessing impediments to removal and potential non-refoulement obligations.

The Tribunal found that LGLH did not pass the character test due to his conviction for rape and other offences, for which he received a sentence of imprisonment of 12 months or more. The Tribunal accepted evidence that LGLH was of Dinka ethnicity and that his father's family was from Rumbek and the Dinka tribe, both located in South Sudan. Applying s 8 of the South Sudan Nationality Act, the Tribunal was satisfied that LGLH was entitled to South Sudanese citizenship by force of law. In considering whether to revoke the mandatory cancellation, the Tribunal found the weight of the primary considerations against revocation to be determinative. The Tribunal characterised LGLH's offending as a particularly serious crime against a woman, committed in aggravating circumstances, which triggered the mandatory cancellation. Consequently, the Tribunal found that the discretion available under s 501CA(4)(b)(ii) of the Act was not enlivened.

The Tribunal affirmed the decision under review, meaning the mandatory cancellation of LGLH's visa was upheld.