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

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa. The applicant, a citizen of Afghanistan, arrived in Australia in 2011 and subsequently married. His offending conduct began in 2013 with family violence against his wife, escalating to serious criminal offences including aggravated assault, trespass, and threats to kill in January 2014. He was convicted of these offences in 2017, receiving a head sentence of five years' imprisonment. His visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on character grounds in May 2018. A delegate of the Minister subsequently decided not to revoke the cancellation, a decision affirmed by the Administrative Appeals Tribunal (AAT). The applicant sought judicial review, and the Federal Court found the AAT had failed to consider Australia's international non-refoulement obligations. Following further proceedings, the AAT was ordered to re-hear the application.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was "another reason" to revoke the visa cancellation decision. In assessing whether the applicant passed the character test, the Tribunal considered his criminal offending, other serious conduct, and the weight to be given to various forms of evidence, including police and correctional service reports. The Tribunal also had to determine if any "other reason" existed to revoke the cancellation, applying Ministerial Direction No. 90, which requires consideration of factors such as the nature and seriousness of the offending conduct, risk of reoffending, insight and remorse, protection of the Australian community, best interests of children, family violence, community expectations, non-refoulement obligations, impediments to removal, and the strength of ties to Australia.

The Tribunal reasoned that the applicant did not pass the character test due to his substantial criminal record, which included serious family violence. It found that the nature and seriousness of his conduct were very significant, and that his expressions of remorse were unpersuasive given his prolonged denial and victim-blaming. The Tribunal was not convinced that the applicant had been meaningfully rehabilitated, noting his persistent misconduct while in prison and unmet treatment needs, leading to the conclusion that he posed an unacceptable risk of reoffending. While acknowledging the applicant's family ties and support from some family members, and that revocation would separate him from his minor children and ill parents, the Tribunal determined that revocation was in the children's best interests. The Tribunal also considered Australia's non-refoulement obligations and the significant impediments the applicant would face if returned to Afghanistan, but ultimately concluded that these factors did not outweigh the primary considerations regarding community protection.

The Tribunal affirmed the decision not to revoke the visa cancellation. It found that the applicant's conduct was very serious, including criminal offences, false claims of innocence, and contrived alibi evidence. The Tribunal was unpersuaded by claims of English language deficiencies or lack of understanding of family violence as mitigating factors. The applicant's persistent misconduct while imprisoned reinforced the view that he was not meaningfully rehabilitated and had unmet treatment needs, presenting an unacceptable risk of reoffending. The Tribunal concluded that the Australian community would not expect such a person to hold a visa. Despite the applicant's family ties and support, and the potential impact on his children, the Tribunal found that revocation was in the children's best interests. While acknowledging Australia's non-refoulement obligations and the significant impediments to removal to Afghanistan, these considerations did not lead the Tribunal to depart from the conclusion that the visa cancellation should be affirmed.