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

This matter concerned an appeal by the applicant against the mandatory cancellation of his visa, which had been cancelled due to his substantial criminal record. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The appeal was heard by Deputy Britten-Jones P.

The court was required to determine whether the discretion to revoke the mandatory cancellation of the applicant's visa should be exercised. This involved considering the primary considerations outlined in Direction No. 79, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. Additionally, the court had to consider other relevant factors, such as Australia's international non-refoulement obligations and the extent of impediments to the applicant's removal.

In reaching its decision, the court found that the nature of the applicant's offending and the low risk of reoffending weighed moderately in favour of revoking the cancellation. The court also gave separate and meaningful consideration to the applicant's representations regarding Australia's potential breach of international law obligations, specifically the non-refoulement principle. The court found that the applicant would face a serious risk of harm if returned to South Sudan, given his profile as the son of a prominent military figure, his Dinka ethnicity, and his status as a returnee. This risk was exacerbated by the volatile security situation in South Sudan and the applicant's background of trauma and mental health needs.

The court ultimately set aside the original decision to cancel the applicant's visa, finding that the risk of serious harm upon return to South Sudan, coupled with other considerations, justified the revocation of the cancellation.