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

This matter concerned an application for review of a mandatory cancellation of the applicant's Global Special Humanitarian (Class XB) (Subclass 202) visa, made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant had failed to pass the character test due to a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether there was another reason why the original decision to cancel the visa should be revoked.

The Tribunal was tasked with considering various factors under Direction No. 79, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, the strength, nature and duration of the applicant's ties to Australia, and the extent of impediments to his removal from Australia. The Tribunal was also required to consider the applicant's international non-refoulement obligations, the expectations of the Australian community, and the impact on victims.

In its reasoning, the Tribunal acknowledged the applicant's extensive criminal record, both as a juvenile and as an adult, which weighed in favour of non-revocation under the primary consideration of community protection and the expectation of the Australian community. However, the Tribunal found that these considerations were not decisive in the circumstances. The Tribunal gave greater weight to other considerations favouring revocation, specifically the best interests of the applicant's minor child in Australia, the strength of his ties to Australia, and the significant impediments to his return to South Sudan, citing reports of extreme violence and lack of safety there.

Ultimately, the Tribunal concluded that the aggregate effect of the considerations favouring revocation outweighed those favouring non-revocation. Therefore, the Tribunal set aside the decision to cancel the applicant's visa and, in substitution, revoked the mandatory cancellation of his visa.