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

This matter concerned the review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Class AY Subclass 104 Preferential Family visa. The applicant, a citizen of Ethiopia, failed to pass the character test due to a substantial criminal record, including sentences of imprisonment of 12 months or more. The applicant had been diagnosed with schizophrenia and florid psychosis, and also suffered from drug and alcohol dependency. The Administrative Appeals Tribunal (AAT) was required to determine whether there was "another reason" to revoke the visa cancellation, having regard to Direction No 99.

The Tribunal was required to consider the strength, nature, and duration of the applicant's ties to Australia, the expectations of the Australian community, and the legal consequences of its decision. Central to the assessment was the applicant's mental health, including a diagnosis of schizophrenia and psychosis, which had impacted his capacity to participate meaningfully in proceedings. The Tribunal also had to weigh the protection of the Australian community against the applicant's circumstances, considering his extensive criminal history, which included serious offences such as aggravated burglary and recklessly causing serious injury, against his diagnosed mental health conditions and his application for a protection visa.

In its reasoning, the Tribunal noted the applicant's substantial criminal record, which unequivocally meant he did not pass the character test. The Tribunal then considered Direction No 99, which mandates that decision-makers have particular regard to the principle that remaining in Australia is a privilege and that non-citizens are expected to be law-abiding. The Tribunal examined the nature and seriousness of the applicant's conduct, including a detailed account of an aggravated burglary where the applicant entered a home and assaulted an occupant, causing injury and fear to those present. The Tribunal also considered the applicant's mental health, including reports from a forensic psychiatrist detailing his diagnoses and the impact on his capacity. The Tribunal affirmed the reviewable decision.