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

This matter concerned an appeal by the applicant, LGNC, against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship and Multicultural Affairs. The cancellation was based on the applicant failing to pass the character test. The applicant sought to have the cancellation decision revoked, arguing there was another reason why it should be set aside. The decision was heard by Mrs J C Kelly, Senior Member.

The primary legal issues before the Tribunal were whether there was another reason, within the meaning of the Migration Act 1958 (Cth), to revoke the visa cancellation decision, and how the considerations outlined in Ministerial Direction No. 99 should be applied. Specifically, the Tribunal was required to weigh the protection of the Australian community against other considerations, including the strength and duration of the applicant's ties to Australia, the best interests of any minor children, community expectations, the legal consequences of the decision, the extent of impediments to removal, and the impact on victims.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 99, which mandates that information from authoritative sources be given appropriate weight, with primary considerations generally carrying greater weight, though other considerations are not necessarily secondary in all cases. The Tribunal noted the applicant's lengthy and extensive criminal record, including serious violent offences and family violence, which weighed heavily against revocation. However, it also considered the applicant's claims regarding potential non-refoulement obligations if returned to South Sudan, acknowledging conflicting evidence about his nationality and the risks he might face due to his ethnicity and the ongoing conflict. The Tribunal accepted the respondent's contention that the applicant was a South Sudanese national by birth and that, based on country information, Dinkas in conflict-affected areas of South Sudan face a high risk of discrimination and violence.

The Tribunal determined that the consideration of 'impact on Australian business interests' was not applicable. It proceeded to consider each of the 'other considerations' individually. The Tribunal found that while the applicant's criminal conduct was serious and weighed against revocation, the potential legal consequences of his return to South Sudan, specifically the risk of harm due to his ethnicity and the ongoing conflict, required careful consideration. The Tribunal's final orders were that the reviewable decision be set aside.