NFLL and Department of Home Affairs (Migration)

This matter concerned an application by NFLL for review of a decision by the Department of Home Affairs not to revoke the mandatory cancellation of her subclass 155 Five Year Resident Return visa. The cancellation was based on NFLL failing to pass the character test due to criminal convictions. The Administrative Appeals Tribunal was required to consider whether there was "another reason" for the cancellation to be set aside, applying the principles outlined in Ministerial Direction No. 65.

The Tribunal was tasked with determining whether the mandatory cancellation of NFLL's visa should be revoked. This involved assessing various factors as mandated by Ministerial Direction No. 65, including the protection of the Australian community, the best interests of minor children, community expectations, international non-refoulement obligations, the strength and duration of NFLL's ties to Australia, any impact on Australian business interests, the impact on victims, and the extent of impediments NFLL might face if removed from Australia.

In its reasoning, the Tribunal considered NFLL's evidence regarding her personal history and the events leading to her criminal convictions, which involved harm to her daughter. NFLL provided explanations for her actions, citing difficulties with her pregnancy, lack of support, and struggles with her daughter's health conditions. The Tribunal also noted NFLL's claims of potential persecution if returned to Iraq due to her membership in the Sabean Mandean minority community, although it found it unnecessary to definitively assess non-refoulement obligations given NFLL's ability to apply for a Protection Visa. The Tribunal acknowledged the advice from the Department of Foreign Affairs and Trade regarding the risks faced by Sabean Mandeans in Iraq.

Ultimately, the Tribunal set aside the decision to refuse to revoke the mandatory cancellation of NFLL's visa.