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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to not revoke the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The Applicant, who does not pass the character test, sought revocation of the cancellation, raising non-refoulement claims concerning his potential return to Ethiopia. The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90.

The Tribunal was tasked with assessing the Applicant's conduct in light of the criteria set out in Ministerial Direction No. 90, particularly concerning the protection of the Australian community. This involved evaluating the nature and seriousness of the Applicant's conduct, including an act of family violence and a dangerous driving incident involving methamphetamine, and assessing the risk to the community should further offending occur. The Tribunal also had to consider the Applicant's background, including his difficult upbringing in Ethiopia and his subsequent life in Australia, as well as his behaviour in custody.

In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90, giving greater weight to primary considerations. It found that while the Applicant's conduct, including an act of family violence and a serious driving offence, was very serious, it was at the lower end of the scale for such offending. The Tribunal also noted the Applicant's good behaviour in custody and accepted that there was no evidence of breaches in prison or immigration detention. The Tribunal concluded that the application of the Direction favoured the revocation of the visa cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision that the cancellation of the Applicant's visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).