NWLH and Minister for Home Affairs (Migration)

The case of NWLH and the Minister for Home Affairs concerned the mandatory cancellation of the Applicant's visa due to his substantial criminal record. The Applicant had been sentenced to 13 months imprisonment for assault occasioning actual bodily harm, and a further 7 months for two charges of common assault. This conviction meant he failed the character test under the Migration Act 1958 (Cth). The Applicant sought to have the cancellation of his visa revoked, arguing that the discretion to revoke should be exercised in his favour. The matter was heard by Deputy J W Constance P.

The court was required to determine whether the Minister's delegate had erred in affirming the decision to cancel the Applicant's visa, and specifically, whether the delegate had properly exercised the discretion to revoke the mandatory cancellation. This involved considering the primary considerations outlined in Direction No. 79, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the Applicant's conduct, the risk to the Australian community, the best interests of the Applicant's minor children, and the expectations of the Australian community. The court also had to weigh other considerations, such as the strength, nature, and duration of the Applicant's ties to Australia, and any impediments he might face if removed from Australia.

In reaching its decision, the court considered expert evidence regarding the Applicant's offending behaviour, which was linked to alcohol abuse and underlying mental health issues. While there was evidence suggesting the Applicant had a low risk of re-offending if he engaged in recommended treatment and had strong familial support, the court also noted the Applicant's conduct while in immigration detention, including an assault on another detainee and an incident involving security staff. The Applicant's own evidence at the hearing, where he appeared to minimise the seriousness of his past conduct, was also taken into account. The court found that the risk to the Australian community was unacceptable, and therefore affirmed the reviewable decision.

The reviewable decision made on 10 August 2017, which was the decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa, was affirmed.