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

This matter concerned an application for review by RNVF, a citizen of Somalia, of the mandatory cancellation of his Class BF Transitional (Permanent) visa. The cancellation was based on the Minister being satisfied that RNVF failed the character test. RNVF made representations seeking revocation of the cancellation, which were refused by a delegate, leading to the review by the Tribunal. A request by RNVF to summons the Respondent Minister was refused.

The primary legal issues before the Tribunal were whether RNVF failed the character test, and if so, whether there was another reason to revoke the visa cancellation. The Tribunal was required to consider the matter in accordance with Direction No. 90, which sets out principles for decision-makers regarding visa cancellations, including primary considerations such as the protection of the Australian community, family violence, and the best interests of minor children, as well as other considerations like international non-refoulement obligations.

The Tribunal considered RNVF's submissions regarding his deprived upbringing, sustained period of no drug use, and rehabilitation during periods of custody, as well as the support he would receive if released. RNVF also gave evidence detailing his traumatic experiences in Somalia and Kenya, including war, violence, and abuse, and his father's military connections. The Tribunal noted that Direction No. 90 requires decision-makers to comply with the Direction, giving greater weight to primary considerations. The Tribunal also addressed the timeframe for making a decision to avoid the automatic affirmation of the delegate's decision under section 500(6L) of the Act.

The Tribunal refused the request to issue a summons to the Respondent Minister, noting that summonses are not issued inter partes and suggesting a direct approach to the Respondent for the information sought. The Minister's lawyers responded that they were unable to identify any documents relating to consideration of Australia's international non-refoulement obligations in the event the visa cancellation was not revoked, as this consideration would only arise in the future if the Tribunal affirmed the delegate's decision.