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

This matter concerned an application for review by SSVJ of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether to set aside the delegate's decision.

The legal issues before the Tribunal included the application of Direction No. 99, which guides decision-makers on mandatory visa cancellations. Specifically, the Tribunal had to consider the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the expectations of the Australian community, and the impact on victims, in light of the applicant's criminal conduct and his history of significant trauma and vulnerability. The Tribunal also had to consider the appropriate country of return, particularly in relation to the principle of non-refoulement, given the applicant's origins in South Sudan.

The Tribunal reasoned that while the protection of the Australian community is a primary consideration, it must be balanced against other relevant factors. The Tribunal noted the applicant's extensive history of trauma, including the loss of his family and caregiver in violent attacks, and his subsequent struggles with alcohol and encounters with the police. It found that the delegate had not adequately considered the applicant's personal circumstances, his limited capacity due to language barriers and lack of education, and the potential impact of his return to South Sudan. The Tribunal applied the principles outlined in Direction No. 99, giving weight to the primary considerations while also acknowledging the 'other considerations' relevant to the applicant's case.

Ultimately, the Tribunal set aside the delegate's decision not to revoke the visa cancellation. In substitution, the Tribunal decided to revoke the cancellation of SSVJ's visa.