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

The Administrative Appeals Tribunal considered the case of QHVB and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning a visa cancellation under section 501(3A) of the *Migration Act 1958* (Cth). The applicant had a substantial criminal record and did not pass the character test, leading to the cancellation of his visa. The central dispute before the Tribunal was whether there was another reason why the visa cancellation should be revoked, despite the applicant's criminal history.

The legal issues before the Tribunal included the assessment of the primary consideration of protecting the Australian community from criminal or other serious conduct, as outlined in Direction No. 90. This involved evaluating the nature and seriousness of the applicant's conduct, specifically a strangling offence against his wife and a breach of an apprehended violence order, and the risk to the community should he re-offend. The Tribunal was also required to consider other relevant factors, including the applicant's background, his mental health condition (PTSD), his offending behaviour stemming from drug-induced psychosis, and his prospects for rehabilitation.

The Tribunal reasoned that while the applicant's offending conduct, particularly the violent offences against his wife and the breach of the AVO, was serious, the events were linked to a specific period of drug-induced psychosis and PTSD. The Tribunal accepted expert evidence that the applicant's risk of re-offending was in the moderate range, noting his engagement in prison programs and mental health treatment. However, the Tribunal found that the extent of his rehabilitation would only become apparent when he was living in the community. Despite the seriousness of the offences, the Tribunal considered the applicant's willingness to undertake further specialised treatment and the protective factors identified, such as a job offer and accommodation assistance.

The Tribunal set aside the decision to refuse to revoke the visa cancellation and substituted a decision to revoke the cancellation.