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

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of VNVT's Global Special Humanitarian visa. VNVT's visa was mandatorily cancelled because he did not pass the character test due to having a substantial criminal record, specifically being sentenced to 12 months or more imprisonment and serving a full-time custodial sentence. VNVT accepted he did not pass the character test but argued there was another reason why the cancellation decision should be revoked.

The Tribunal was required to determine whether VNVT passed the character test or if there was another reason to revoke the visa cancellation. In conducting this review, the Tribunal was to perform the same function and exercise the same power as the primary decision-maker, applying the principles and considerations outlined in Direction 79 of the Migration Act 1958. This involved weighing primary considerations, such as the protection of the Australian community, against other considerations, including international non-refoulement obligations and the extent of impediments if removed.

The Tribunal found that while VNVT's conduct to date was very serious, involving crimes of violence and frequent offending attracting multiple prison sentences, there were significant countervailing considerations. Specifically, the Tribunal was satisfied that there were non-refoulement obligations owed to VNVT and that there were substantial impediments to his removal. After carefully weighing these factors, including the seriousness of his offending against the non-refoulement obligations and the extent of impediments to removal, the Tribunal concluded that there was another reason why the visa cancellation decision should be revoked.

Consequently, the Tribunal set aside the delegate's decision not to revoke the cancellation and, in substitution, decided to revoke the mandatory cancellation of VNVT's visa.