MTJB and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant for the non-revocation of a mandatory visa cancellation. The Applicant's Refugee Class XB visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test and was serving a full-time term of imprisonment. The Tribunal was required to consider whether the discretion to revoke the mandatory cancellation, as provided for in section 501CA of the Act, should be exercised.

The primary legal issues before the Tribunal were the considerations outlined in Direction No. 79, specifically the protection of the Australian community from criminal or other serious conduct, the risk of re-offending, the risk of harm to the Australian community, the best interests of minor children, the expectations of the Australian community, the strength, duration, and nature of the Applicant's ties to Australia, and the non-refoulement obligations under Direction No. 75.

Senior Member Theodore Tavoularis reasoned that the Applicant's criminal history, including multiple serious drink-driving offences and driving while disqualified, demonstrated a significant risk to the Australian community. The Tribunal found that while the Applicant claimed to have addressed his alcohol issues, there was no independent expert evidence to substantiate this or to confirm a reduced risk of re-offending. The Applicant's purported rehabilitation had only been tested in controlled environments and had not yet been exposed to the broader community. Consequently, the Tribunal was not convinced that the Applicant's capacity to control his alcohol intake was sufficient to render him a lower risk.

The Tribunal affirmed the decision to refuse to revoke the mandatory visa cancellation.