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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's Global Special Humanitarian (Class BA) (Subclass 202) visa. The visa was mandatorily cancelled because the Applicant had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more, and was serving a full-time custodial sentence for an Australian state offence. The Applicant made representations seeking revocation, but the delegate affirmed the cancellation. The Administrative Appeals Tribunal was required to determine for itself whether the Applicant passed the character test or if there was another reason to revoke the cancellation decision.

The Tribunal was required to consider the relevant considerations outlined in Direction 79, which included primary considerations such as the protection of the Australian community from criminal conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as international non-refoulement obligations and the extent of impediments if removed. The primary considerations were generally to be given more weight than other considerations, though this was not an absolute rule.

In its reasoning, the Tribunal found that the Applicant's offending was very serious. While the best interests of the Applicant's niece and nephews were considered, the Tribunal attributed little weight to this consideration, noting the relationship was not parental and would require substantial enhancement to be material. The Tribunal also considered the expectation of the Australian community that non-citizens obey Australian laws. The Tribunal noted that while non-refoulement obligations were a factor to be weighed against the seriousness of the offending, it ultimately concluded that there was no other reason why the decision to cancel the Applicant's visa should be revoked.

The Tribunal affirmed the decision not to revoke the cancellation of the Applicant's visa.