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

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel the visa of the applicant, Mr. Mokeni. The cancellation was based on the applicant failing to pass the character test due to serious criminal convictions, including reckless grievous bodily harm and unlawful assault. The central dispute concerned whether there was "another reason" to revoke the mandatory visa cancellation, as contemplated by the Migration Act 1958.

The Tribunal was required to determine whether the applicant's personal circumstances, including his mental health issues, his links to the Australian community, and the best interests of any minor children, constituted "another reason" to set aside the cancellation. This involved a detailed consideration of the applicant's offending conduct, the risk he posed to the Australian community, and the potential impact of his removal on himself and his family, all within the framework of Direction No. 99.

In its reasoning, the Tribunal gave significant weight to the protection of the Australian community, acknowledging the seriousness of the applicant's offences. However, it also considered evidence regarding the applicant's mental health, his commitment to treatment, and his efforts to abstain from substance abuse. The Tribunal noted that the sentencing judge had already reduced the applicant's moral culpability due to his mental illness at the time of the grievous bodily harm offence. Ultimately, the Tribunal concluded that while the risks posed by the applicant were serious, they could be mitigated through appropriate treatment regimes, which were more likely to be accessed in Australia.

On balance, the Tribunal found that the considerations weighed in favour of revoking the visa cancellation. It accepted that the applicant, despite some ambivalence, was committed to addressing his mental illness and refraining from substance abuse. Consequently, the Tribunal revoked the delegate's decision to cancel the applicant's visa, emphasizing the applicant's responsibility to maintain his treatment and abstain from drugs and alcohol.