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

This matter concerned an application by RZBB, a citizen of Sierra Leone, for the revocation of a mandatory visa cancellation. RZBB's Class XB Subclass 202 Global Special Humanitarian visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test due to having a substantial criminal record. The dispute before the Administrative Appeals Tribunal was whether the discretion to revoke this cancellation under section 501CA(4) of the Act should be exercised.

The Tribunal was required to determine whether there was another reason why the original decision to cancel RZBB's visa should be revoked. In making this determination, the Tribunal was bound to consider Ministerial Direction No. 90, which outlines the principles and considerations relevant to such decisions, including the protection of the Australian community, the nature and seriousness of the conduct, the risk of re-offending, the best interests of children, Australia's non-refoulement obligations, and the applicant's ties to Australia and any impediments to removal.

The Tribunal reasoned that RZBB had a substantial criminal record, having been convicted of sexual intercourse without consent on two counts and sentenced to over seven years imprisonment. While acknowledging RZBB's traumatic past, including witnessing his father's murder in Sierra Leone and his subsequent PTSD, the Tribunal noted that he offended less than three years after arriving in Australia at the age of 20. The Tribunal applied the principles in Ministerial Direction No. 90, which emphasises Australia's sovereign right to determine who remains in the country and the expectation that non-citizens who engage in serious criminal conduct should forfeit the privilege of remaining. The Tribunal found that RZBB did not pass the character test and that there was no other reason to revoke the original decision.

The Tribunal affirmed the original decision to cancel RZBB's visa.