PKJT and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review by the applicant, PKJT, of a decision by a delegate of the Minister for Immigration and Border Protection not to revoke the mandatory cancellation of his visa. The cancellation was based on the applicant failing the character test due to a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to determine whether to affirm or set aside the delegate's decision.

The primary legal issue before the Tribunal was whether there was another reason why the original visa cancellation decision should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the Tribunal to consider the protection of the Australian community from harm, the nature and seriousness of the applicant's past conduct, and the risk of future offending. The Tribunal also had to consider the applicant's prospect of rehabilitation and any other relevant considerations.

The Tribunal reasoned that while the applicant had a serious criminal record, including custodial sentences, and had demonstrated a pattern of disregard for the law, it was not a clear-cut case. The Tribunal noted that it had the benefit of new material and witness testimony not available to the original decision-maker. After considering the primary considerations, including the gravity of the offences and the frequency of offending, and balancing these against other factors such as the applicant's stated remorse and the prospect of rehabilitation, the Tribunal found that there was another reason to revoke the cancellation decision.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted a new decision revoking the cancellation of the applicant's visa.