WDCH and Minister for Home Affairs (Migration)

This matter concerned an appeal by the applicant, WDCH, against the mandatory cancellation of his visa by the Minister for Home Affairs. The applicant, who arrived in Australia in 2008 as a minor, had been convicted of serious criminal offences, including assault and firearm possession, resulting in sentences of imprisonment of 12 months or more. The central dispute was whether there was "another reason" to revoke the visa cancellation decision, as contemplated by the Migration Act 1958 (Cth), with the applicant arguing for revocation and the Minister for Home Affairs opposing it. The Administrative Appeals Tribunal (AAT) heard the matter.

The Tribunal was required to determine whether, on the balance of probabilities, there was another reason to revoke the mandatory visa cancellation. This involved considering the primary considerations outlined in Direction 65, including the protection of the Australian community, the best interests of any minor children affected by the decision, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as international non-refoulement obligations, the strength of the applicant's ties to Australia, and the impediments to his removal from Australia.

In its reasoning, the Tribunal acknowledged the applicant's difficulties with delayed learning and ADHD, and the bullying he experienced. However, it found that the protection of the Australian community weighed heavily against revoking the cancellation. The Tribunal noted that the applicant had no children, and therefore the primary consideration regarding the best interests of minor children had no significant weight. Regarding community expectations, the Tribunal considered that the Australian community expects non-citizens to obey the law and that the applicant's serious criminal conduct would likely lead the community to expect that he should not hold a visa. While the applicant's mother expressed fears for his safety in South Africa due to high crime rates and a past incident, the Tribunal found no objective evidence to support these fears as a compelling reason to revoke the cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that, on balance, the primary consideration of protecting the Australian community weighed against revoking the cancellation, and that other considerations, including the applicant's expressed fears about returning to South Africa, did not provide a sufficient reason to set aside the mandatory cancellation.