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

This matter concerned an appeal by LMFV against the Minister for Immigration, Citizenship and Multicultural Affairs' refusal to revoke the mandatory cancellation of his visa. The applicant, a citizen of Sierra Leone, had been convicted of sexual intercourse with a person with a cognitive impairment and causing reckless grievous bodily harm by transmitting HIV. The court was required to determine whether the decision-maker had correctly applied the framework set out in Direction 99, particularly concerning the primary consideration of protecting the Australian community from criminal or other serious conduct, and the "other" considerations, including legal consequences of the decision and the extent of impediments if removed.

The court's reasoning focused on the application of Direction 99, which outlines principles for decision-makers. It considered the applicant's criminal history, including a conviction for contravening an apprehended violence order, shoplifting, and possession of a knife, culminating in a serious offence in 2017 for which he was imprisoned. The court also examined evidence regarding the victim's cognitive impairment and the applicant's potential intoxication at the time of the offence. Crucially, the court weighed the protection of the Australian community against other considerations, such as potential protection obligations owed to the applicant due to his flight from civil war in Sierra Leone and the significant health risks he would face if returned, including PTSD and the lack of adequate medical care for HIV and tuberculosis in his home country.

The court found that while protection obligations might be owed to the applicant, this was a matter best determined on a protection visa application. However, it concluded that the impediments to removal, particularly concerning the applicant's health and the lack of support in Sierra Leone, were substantial and far more serious than the sentence imposed by the courts. Balancing these considerations, including the psychologist's evidence suggesting a low risk of reoffending, the court determined that the preferable decision was to revoke the cancellation of the applicant's visa. The decision under review was therefore set aside and substituted with a decision to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).