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

This matter concerned the mandatory cancellation of the applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record. The applicant sought revocation of this cancellation. The Tribunal had affirmed the decision not to revoke the cancellation. The Federal Court had previously set aside the Tribunal's decision and remitted the matter for redetermination. The hearing before Deputy President Britten-Jones concerned the applicant's mental health and capacity to participate in proceedings, with reports indicating he suffered from paranoid schizophrenia and lacked decision-making capacity.

The primary legal issue before the court was whether the discretion to revoke the mandatory visa cancellation should be exercised, considering the applicant's criminal conduct, his mental health condition, and potential non-refoulement obligations. This involved assessing the protection of the Australian community against the individual circumstances of the applicant, particularly the risk of harm if returned to Kenya due to his mental health. The court was required to apply the principles outlined in Direction 90 of the Minister's Directions regarding the protection of the Australian community and the seriousness of the non-citizen's conduct.

The court considered the applicant's criminal history, noting that while earlier offences were relatively minor, he had pleaded guilty to serious offences of "failed to reasonably ensure that fire/ignition source did/would not cause a fire that could not be controlled" and "aggravated burglary." The sentencing remarks highlighted the vindictive and dangerous nature of the fire offence and the aggressive, traumatising behaviour during the burglary. However, the court also noted a prior charge of "threats to injure, endanger or harm a person" was dismissed due to unsoundness of mind. Crucially, the court had regard to the applicant's diagnosis of schizophrenia and the serious risk of harm if returned to Kenya, which engaged non-refoulement obligations. The court found that these factors weighed in favour of revoking the visa cancellation.

The decision under review was set aside and substituted by a decision revoking the mandatory cancellation of the applicant's visa.