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

This matter concerned an application for review by MJMG of a delegate's decision to affirm the mandatory cancellation of his visa. MJMG, a citizen of South Sudan, had his visa cancelled due to a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to consider whether to revoke this cancellation.

The central legal issue before the Tribunal was whether the discretion available under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory visa cancellation was enlivened. This required the Tribunal to weigh various considerations, including the primary considerations outlined in Ministerial Direction No. 90, such as the protection of the Australian community, the conduct of the applicant, the best interests of minor children exposed to family violence, and the expectations of the Australian community. Other considerations included international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community.

The Tribunal reasoned that while MJMG presented arguments for revocation, including a low likelihood of re-offending, his length of time in Australia, and concerns regarding non-refoulement, these were outweighed by other factors. The Tribunal noted that MJMG's conduct constituted family violence, and that the best interests of minor children exposed to such violence were a significant consideration. Furthermore, the Tribunal found that the inherent seriousness of family violence, as highlighted in Ministerial Direction No. 90, meant that even strong countervailing considerations might be insufficient to justify revocation. The Tribunal concluded that the weight of considerations not supporting revocation were determinative, and therefore the discretion to revoke the cancellation was not enlivened.

Consequently, the Tribunal decided to affirm the delegate's decision to affirm the mandatory cancellation of MJMG's visa.