PYCS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the mandatory cancellation of the applicant's, PYCS, visa. PYCS, an Afghan citizen who had never lived in Afghanistan, held a Resident Return visa which was cancelled due to his substantial criminal record. The delegate of the Minister decided not to revoke the cancellation, and the AAT affirmed this decision. The Federal Court had previously quashed the AAT's decision and remitted the matter for a fresh determination.

The primary legal issue before the Tribunal was whether to revoke the mandatory cancellation of PYCS's visa under section 501CA(4) of the *Migration Act 1958* (Cth). This required the Tribunal to consider various factors, including the protection of the Australian community from criminal or other serious conduct, PYCS's character, his past and present conduct, and any other relevant matters, in accordance with Ministerial Direction No. 90. The Tribunal was specifically required to assess the nature and seriousness of PYCS's offending, including whether it involved violent or sexual crimes, or acts of family violence, and to weigh these against any considerations that might weigh in his favour.

The Tribunal's reasoning focused on the seriousness of PYCS's criminal conduct, which included drug possession, trespass, intimidation, larceny, and being armed with intent to commit an indictable offence. The Magistrate's summary highlighted the violent nature of some offences, the use of a weapon, and the fear instilled in the victim. The Tribunal noted PYCS's history of repeated and serious offending, including drug-related offences, and expressed doubt about his ability to address the drivers of his offending and mitigate the risk of re-offending. While acknowledging PYCS's stated desire to overcome his drug addiction and his plans for rehabilitation and psychological support, the Tribunal found that his past conduct and the nature of his offences were significant factors that weighed heavily against revocation. The Tribunal concluded that the discretion available under s 501CA(4) was not enlivened.

Consequently, the Tribunal decided to affirm the reviewable decision of 7 September 2021, which was the decision not to revoke the mandatory cancellation of PYCS's visa.