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

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the applicant's, STZS, class XB subclass 200 (refugee) visa. The visa had been cancelled due to STZS possessing a substantial criminal record. The delegate of the Minister had decided not to revoke the cancellation. The review was heard by a Tribunal, which considered the application under Ministerial Direction No. 90.

The Tribunal was required to determine whether STZS failed the character test, and if so, whether there was another reason to revoke the cancellation of his visa. In considering whether to revoke the cancellation, the Tribunal had to assess various primary considerations outlined in Direction No. 90, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia affected by the decision, and the expectations of the Australian community. Other considerations included international non-refoulement obligations, the extent of impediments if removed, STZS's chronic psychiatric condition, his links to the Australian community, and the prospects of prolonged detention. The Tribunal also considered the weight to be given to expert medical evidence, particularly when the witness stated their opinion was not given in their expert capacity.

The Tribunal found that STZS did indeed fail the character test due to his conviction for burglary and committing an indictable offence, which constituted a substantial criminal record. In assessing the best interests of the minor children, the Tribunal considered STZS's four half-siblings, aged 10 to 14, who regularly communicated with him and were keen for his return. Despite STZS's non-parental relationship and periods of absence, the Tribunal determined that it would be in the best interests of these minor children for STZS's visa to be restored, noting the consistent evidence of the witnesses regarding the bond. The Tribunal also considered the evidence of a medical witness, concluding that the witness's qualifications made them competent to express a general view, and that the evidence did not carry no weight, even if not given in a strict expert capacity.

The Tribunal set aside the decision under review and substituted a new decision, revoking the cancellation of STZS's visa.