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

The case of VSGP and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerned the mandatory cancellation of the applicant's visa due to his substantial criminal record. The applicant had been convicted of over 100 offences between 2005 and 2017, including theft, assault, drug offences, and breaches of bail and community correction orders, leading to a sentence of 18 months imprisonment with a non-parole period of six months. The primary issue before the court was whether there was "another reason" why the mandatory cancellation of his visa should be revoked, as required by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), having regard to Ministerial Direction No. 79.

The court was required to determine whether the discretion to revoke the mandatory cancellation should be exercised, considering both primary and other considerations outlined in Direction No. 79. The applicant argued that his removal to South Sudan would engage Australia's international non-refoulement obligations, as he feared persecution and serious harm due to his Nuer ethnicity, his status as a "western returnee," his mental illness, and the general instability in the country. He also contended that he would face significant impediments in establishing himself and maintaining basic living standards in South Sudan, and that his mental health issues would not be adequately treated.

The court reasoned that the expectations of the Australian community weighed in favour of not revoking the cancellation. However, it gave separate and meaningful consideration to the applicant's representations regarding Australia's non-refoulement obligations. The court noted that the risks of harm the applicant would face if removed were relevant to these obligations. The applicant's evidence detailed a traumatic childhood in Sudan, his refugee status in Australia, his diagnosis of schizophrenia, and his struggles with drug and alcohol abuse which exacerbated his mental health issues and led to his offending. He expressed remorse and a commitment to sobriety and treatment. The court found that the applicant's representations concerning the risk of persecution and serious harm in South Sudan, coupled with the impediments to his establishment and treatment there, constituted other considerations that outweighed the primary considerations.

Ultimately, the court set aside the delegate's decision not to revoke the visa cancellation. This outcome was based on the finding that the applicant's circumstances, particularly the risks he would face upon return to South Sudan and the potential breach of Australia's international non-refoulement obligations, constituted "another reason" for revocation that outweighed the factors favouring cancellation.