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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs to affirm the mandatory cancellation of the applicant's Class XB Subclass 202 Global Special Humanitarian visa. The applicant, a citizen of South Sudan, had his visa mandatorily cancelled under s 501(3A) of the *Migration Act 1988* (Cth) due to having a substantial criminal record, specifically being sentenced to a term of imprisonment of at least 12 months. The applicant sought revocation of this cancellation, but the delegate refused, leading to the application for review before the Tribunal.

The Tribunal 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 the relevant Direction, particularly the protection of the Australian community from harm due to criminal activity. The Tribunal also had to assess the nature and seriousness of the applicant's conduct to date, including the risk to the community should he commit further offences. Additionally, the Tribunal was to consider any other relevant factors, such as non-refoulement obligations.

In its reasoning, the Tribunal applied the principles set out in the Direction concerning the protection of the Australian community, noting the expectation that non-citizens will be law-abiding. It considered the applicant's history of dishonesty and violence, which commenced in his youth and continued into adulthood, describing him as a recidivist offender. The Tribunal found that the applicant's criminal conduct was serious, particularly given its frequency and cumulative effect. While acknowledging the applicant's background and the fact that he arrived in Australia at a young age, the Tribunal concluded that these factors did not outweigh the need to protect the Australian community. The Tribunal also noted that the applicant had not raised any non-refoulement obligations.

Consequently, the Tribunal decided not to exercise its discretion to revoke the mandatory cancellation of the applicant's visa. The decision under review was affirmed.