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

This matter concerned an application to review the mandatory cancellation of the Applicant's Class BB Subclass 155 Resident Return visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record and being sentenced to a term of imprisonment of 12 months or more. The Applicant sought to have the cancellation revoked, arguing there was another reason why it should be revoked, and the court was required to consider this in light of Direction No. 90.

The legal issues before the court were whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked, and how the principles outlined in Direction No. 90, including the primary and other considerations, should be applied to the Applicant's circumstances. Specifically, the court had to assess the Applicant's risk of re-offending, the seriousness of his past conduct, and any countervailing considerations, such as his mental illness and international non-refoulement obligations.

The court considered expert evidence from a consultant psychiatrist, Dr. Jai Nathani, who diagnosed the Applicant with schizophrenia. However, Dr. Nathani also noted that the Applicant had a history of self-harming behaviour and features of personality disorder, and that schizophrenia could encompass such symptoms. Crucially, Dr. Nathani testified that the Applicant had never been able to achieve abstinence from illicit substances or adhere to treatment while in the community. Based on this, the court concluded that the Applicant represented a high risk of re-offending, both violently and non-violently, if returned to the community. The court found that the nature and seriousness of the Applicant's past conduct were very serious, and the risk of harm to the Australian community was significant.

The court affirmed the decision under review, finding that the Applicant's risk of re-offending was in the high range. The court was not satisfied that there was another reason why the cancellation of the visa should be revoked, given the serious nature of the Applicant's conduct and the high risk he posed to the Australian community.