VLPW and Minister for Immigration, Citizenship and Multicultural AffairsMattertype: Migration (Migration)

This matter concerned an application to review the mandatory cancellation of the applicant’s visa by the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant, who arrived in Australia at the age of six and had resided there for most of his life, possessed an extensive criminal record including offences of theft, dishonesty, robbery, dangerous driving, possession of prohibited weapons and methylamphetamine, and unlawful assault. The most serious offence involved a vicious attack on an elderly, partially blind man. The court was required to determine whether there was another reason for the cancellation decision to be revoked, having regard to Direction No. 99.

The primary legal issue before the court was whether the applicant's circumstances constituted an "another reason" for the mandatory cancellation of his visa to be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required a balancing exercise between the serious nature of the applicant's offending, which demonstrated a substantial criminal record and a significant risk to the Australian community, and other considerations, including the strength, nature, and duration of his ties to Australia and the impediments he would face if removed to South Sudan. The court was directed to consider the cumulative effect of the offending and to give appropriate weight to primary considerations and other considerations under the Direction.

The court reasoned that while the applicant's criminal offending was extensive, antisocial, and posed a substantial risk to the community, significant weight must be given to the impediments he would face upon removal to South Sudan. These impediments included the country's political instability, serious poverty, and the applicant's limited connection to South Sudan, having not lived there since a very young age. The court found that these factors, when weighed against the primary considerations favouring cancellation, constituted "another reason" for the cancellation to be revoked. The court ultimately set aside the decision under review and substituted a decision that the cancellation of the applicant's visa be revoked.