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

This matter concerned an application by SCDZ for the revocation of a mandatory visa cancellation. The applicant, who had been granted a protection visa in 2011, did not satisfy the character test due to offending. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The case was heard by Deputy J.l. Redfern Psm P.

The primary legal issue before the Tribunal was whether there was another reason to revoke the mandatory cancellation of the applicant's visa, as contemplated by Ministerial Direction 90. This required the Tribunal to consider various factors, including the protection of the Australian community, the expectations of the Australian community, Australia's international non-refoulement obligations, the extent of impediments to removal, and the impact of prolonged or indefinite immigration detention.

The Tribunal considered the applicant's links to the Australian community, finding them to be limited due to a sporadic employment history and a relatively short period in the community before offending. The Tribunal also addressed the significant issue of prolonged immigration detention, noting that amendments to the Act meant that a non-citizen with a cancelled protection visa could not be involuntarily removed if a protection finding had been made. This created a situation where such individuals could be detained indefinitely pending consideration of other executive decisions. The Tribunal found that the protection of the Australian community weighed against revocation, acknowledging the risk of harm if the applicant reoffended. However, the Tribunal also considered the expectations of the Australian community, guided by the Government's views as articulated in Ministerial Direction 90, and the potential impact of prolonged detention on international obligations.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision to revoke the cancellation.