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

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs regarding the non-revocation of a mandatory cancellation of a Class XB Subclass 200 Refugee visa. The applicant did not pass the character test due to a serious criminal record. The applicant contended that there was "another reason" to revoke the visa cancellation, citing, among other things, Australia's non-refoulement obligations and impediments to his return to South Sudan. The court was required to consider the validity of Ministerial Direction 90 in its assessment.

The primary legal issues before the court were whether the best interests of the applicant's children constituted a sufficient reason to revoke the visa cancellation, and whether Australia's non-refoulement obligations and other impediments to the applicant's return to South Sudan were determinative factors that outweighed the primary considerations, particularly the protection of the Australian community and its expectations. The court was also required to assess the weight to be given to various considerations as outlined in Ministerial Direction 90, including the community's expectation that non-citizens obey Australian laws and the seriousness of the applicant's criminal conduct.

The court reasoned that while the best interests of the children, particularly two identified children, were served by revoking the visa cancellation and were given moderate weight, this consideration alone was not determinative. The court also considered the applicant's submission that his return to South Sudan would be unconscionable due to a lack of survival skills, and acknowledged the force of this argument in relation to non-refoulement obligations and impediments to return. However, the court found that the Direction clearly articulated that the existence of a non-refoulement obligation did not preclude non-revocation of a mandatory cancellation. Ultimately, the court concluded that the applicant posed an unacceptable risk to the community and had committed a serious crime that the community would expect to result in visa cancellation. These considerations, particularly the protection of the Australian community, were found to be determinative and outweighed the weight given to the best interests of the children and the non-refoulement obligations.

The court affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.