Mukiza and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's Class BS Subclass 801 Spouse visa. The Applicant, who had been diagnosed with schizophrenia since his teenage years, had arrived in Australia in 2009 and was granted the visa in 2013. His visa was cancelled on 22 November 2018, after he was sentenced to a term of imprisonment of 12 months or more, meaning he failed to pass the character test under the Migration Act 1958 (Cth). The delegate's decision not to revoke the cancellation was made on 12 August 2019, leading to the Applicant's application for review by the Tribunal.

The central legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act. The Applicant did not pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. Therefore, the Tribunal's discretion to revoke the cancellation hinged entirely on the existence of such an alternative reason, to be considered within the framework of Ministerial Direction No. 79.

The Tribunal considered all the evidence, including that which weighed against the Applicant. It was noted that the Applicant's offending and his mental health condition, schizophrenia, occurred contemporaneously. The Tribunal ultimately found that the risk to the Australian community posed by the Applicant was at a low level. Consequently, the Tribunal set aside the delegate's decision and substituted its own decision, revoking the cancellation of the Applicant's visa.