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

This matter concerned an application by the Applicant, Mr Nkani, to the Administrative Appeals Tribunal (AAT) seeking to revoke a mandatory visa cancellation. The cancellation was based on the Applicant failing to pass the character test. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the Respondent.

The AAT was required to determine whether there was "another reason" why the Applicant's visa cancellation should be revoked, considering the criteria set out in Ministerial Direction 90. This involved weighing various factors, including the protection of the Australian community, the best interests of minor children, community expectations, and any non-refoulement obligations. The Applicant also claimed a fear of witchcraft in his country of return, which presented an impediment to his removal. The Tribunal had to assess the strength, nature, and duration of the Applicant's ties to Australia, as well as the impact on any victims of his offending behaviour.

The Tribunal considered the Applicant's offending record and his risk of reoffending as significant factors against him. It also examined "other considerations" as outlined in the Ministerial Direction, noting that these could, in appropriate circumstances, outweigh primary considerations. The Tribunal referenced previous case law, including *Suleiman v Minister for Immigration and Border Protection*, which established that "other considerations" should not be treated as secondary and could be given greater weight than primary considerations if the specific circumstances warranted it. Despite evidence from witnesses who expressed some fondness for the Applicant and believed he could address his problems, the Tribunal found that the Applicant had engaged in identity theft, which demonstrated a profound lack of personal character and integrity.

The Tribunal affirmed the decision to cancel the Applicant's visa.