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

This matter concerned an application to review the cancellation of the applicant's visa. The applicant, born in Somalia in 1995, arrived in Australia as a refugee at the age of 14 and had not returned to his country of origin. The respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, had cancelled the applicant's visa due to his extensive criminal history. The Administrative Appeals Tribunal (AAT) conducted a hearing de novo, considering all evidence presented.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was the correct or preferable decision on the merits, given his substantial and persistent offending. This involved assessing the applicant's criminal record, which commenced at age 18 and spanned approximately eight years, encompassing 104 offences. The Tribunal was required to determine if the applicant's conduct, including numerous instances of property and violent offences, driving unlicensed, and repeated breaches of bail conditions, warranted the cancellation of his visa.

The Tribunal reasoned that while the delegate's decision to cancel the visa was based on the applicant's extensive criminal history, the Tribunal's role was to conduct a fresh assessment of the merits. The applicant's offending was noted as extremely frequent, often occurring while on bail or probation, and frequently accompanied by drug abuse, suggesting a lack of control and potentially a need to fund drug purchases. The Tribunal observed that previous custodial sentences had not led to rehabilitation, as evidenced by further offending. Despite the gravity of the criminal conduct, the Tribunal ultimately decided to set aside the cancellation decision and substitute it with a decision to revoke the cancellation.