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

This matter concerned the review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to not revoke the mandatory cancellation of the Applicant's Refugee (Class XB) (Subclass 200) visa. The visa cancellation was based on the Applicant failing to pass the character test due to a criminal record, including a conviction for recklessly causing serious injury, which was categorised as family violence. The Applicant sought to have this cancellation revoked.

The court was required to determine whether the delegate had erred in their assessment of the primary and other considerations under Ministerial Direction No. 90, particularly concerning the protection of the Australian community from criminal or other serious conduct, the best interests of the Applicant's minor Australian citizen children, and the Applicant's international non-refoulement obligations. The court also had to consider the extent of impediments to the Applicant's removal from Australia and the strength, nature, and duration of his ties to the Australian community.

The court reasoned that while the Applicant's conviction for recklessly causing serious injury was a serious matter, particularly as it constituted family violence, and his offences against government officials were also serious, the weight given to these factors needed to be balanced against other considerations. The court noted that the Applicant's criminal history showed an increase in offending related to his alcohol addiction, but also acknowledged his positive conduct in prison and placed limited weight on a disputed incident in immigration detention. Crucially, the court considered the Applicant's significant ties to Australia, including his Australian citizen wife and four children, and his established employment history and vocational qualifications. The court also considered the Applicant's background of persecution in the DRC and his refugee status.

Ultimately, the court set aside the delegate's decision. In substitution, the court ordered that the cancellation of the Applicant's visa be revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).