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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of Somalia who arrived in Australia at age 14, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, including convictions for serious offences. The Applicant sought revocation of this cancellation, but this was refused by the delegate. The Tribunal, in a previous proceeding, affirmed the delegate's decision. However, the Federal Court subsequently quashed that Tribunal decision, finding jurisdictional error in its failure to properly consider the Applicant's submission that prolonged or indefinite detention constituted another reason for revocation. The matter was remitted to the Tribunal for determination according to law.

The Tribunal was required to determine two primary issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked, pursuant to section 501CA(4) of the Act. In considering these issues, the Tribunal was directed to apply Direction No 90, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the best interests of minor children, community expectations, Australia's international obligations, and the strength, nature, and duration of ties to Australia.

In its reasoning, the Tribunal acknowledged the Applicant's extensive criminal history, which commenced in his youth and continued into adulthood, involving serious offences such as intentionally causing serious injury, armed robbery, and rape, as well as drug and theft offences. The Tribunal also considered the prevalence of drugs in the community and the harm they cause. However, the Tribunal noted a substantial break in the Applicant's offending history of 12 years, during which he has been held in immigration detention. The Tribunal took into account evidence of the Applicant's rehabilitation, including his own statements indicating maturation, a change in his behaviour and outlook, and a desire to reconnect with his family. It also considered the difficult circumstances of his detention, including assaults and self-harm, and the prospect of prolonged or indefinite detention. The Tribunal found that while the Applicant did not pass the character test, there was another reason to revoke the cancellation decision, specifically the prospect of prolonged or indefinite detention and the evidence of rehabilitation and maturation.

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