NVTN 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 affirm the mandatory cancellation of the Applicant's Class XB Subclass 204 - Women at Risk visa. The Applicant did not pass the character test due to a history of offending, including violent and alcohol-related offences, and sexual offending against a vulnerable person. The core dispute revolved around whether there was "another reason" to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90 and Australia's international non-refoulement obligations.

The Tribunal was required to determine whether the Applicant's visa cancellation should be revoked. This involved a detailed consideration of Ministerial Direction No. 90, specifically the primary considerations of protection of the Australian community and the best interests of minor children in Australia, as well as other considerations including the Applicant's visa and immigration history, and Australia's international non-refoulement obligations. The Tribunal had to weigh the seriousness and frequency of the Applicant's offending against any mitigating factors.

In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90. It noted that paragraph 7.2 generally requires primary considerations to be given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations. The Tribunal found that the Applicant's extensive criminal record, which included numerous driving offences, violent offences, and indecent dealing with a person with an impairment of the mind, demonstrated a concerning pattern of behaviour. While acknowledging the Applicant's immigration history and the potential impact on his family, the Tribunal concluded that the protection of the Australian community was a paramount consideration. Despite the Applicant's arguments regarding non-refoulement obligations, the Tribunal found that a holistic application of the Direction favoured the non-revocation of the visa cancellation.

Consequently, the Tribunal determined that it could not exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the cancellation of the Applicant's visa. The decision under review was affirmed.