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

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant conceded that their criminal record meant they did not pass the character test under section 501(6) of the Migration Act 1958 (Cth). Consequently, the sole issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation under section 501CA(4)(b)(ii) of the Act.

The Tribunal was required to determine what considerations were relevant to the "another reason" limb of section 501CA(4)(b)(ii), particularly in light of Ministerial Direction 79. This involved assessing the weight to be given to primary considerations, such as the protection of the Australian community from criminal conduct, and other considerations, including Australia's non-refoulement obligations. The Tribunal also had to consider the potential consequences of non-revocation, including the impact of prolonged detention on the applicant's mental health.

In its reasoning, the Tribunal applied the principles outlined in Direction 79, which mandates that decision-makers consider both primary and other considerations when assessing whether to revoke a visa cancellation. The Tribunal noted that while protecting the Australian community is a primary consideration, it must be balanced against other factors. The Tribunal found that the applicant's International Organisation for Migration (IOM) assessment, which indicated a real chance of suffering serious harm if returned to Afghanistan, constituted a significant "other reason" for revocation. The Tribunal also considered the indefinite period of detention and its detrimental effect on the applicant's mental health as further reasons for revocation.

The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.