WKMZ and Minister for Home Affairs (Migration)

This matter concerned an application by WKMZ (the Applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of a decision not to revoke the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The Applicant had failed to pass the character test due to a substantial criminal record, including multiple convictions for serious offences, some involving imprisonment for 12 months or more. The central dispute revolved around whether there was "another reason" why the cancellation decision should be revoked, requiring the Tribunal to consider various factors outlined in Direction No. 79.

The Tribunal was required to determine whether the Applicant passed the character test, which involved assessing whether he had a substantial criminal record as defined by the Act. If he did not pass the character test, the Tribunal then had to consider whether there was another reason to revoke the visa cancellation. This involved weighing several primary considerations, including the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, the best interests of minor children, Australia's international non-refoulement obligations, the strength and duration of the Applicant's ties to Australia, the extent of impediments if removed, and the hardship to the Applicant.

In its reasoning, the Tribunal found that the Applicant did not pass the character test due to his extensive criminal history, which included convictions for offences such as robbery, making threats to kill, unlawful assault, and intentionally causing injury, with significant aggregate prison sentences imposed. The Tribunal determined that the primary considerations of protecting the Australian community and the expectations of the Australian community weighed heavily against revoking the cancellation, citing a high likelihood of reoffending due to alcohol abuse, mental health issues, and a propensity for violence. However, the Tribunal also found that the best interests of the Applicant's six Australian child siblings, Australia's non-refoulement obligations, the strength of his ties to Australia, impediments to removal, and hardship to the Applicant all weighed in favour of revocation. Despite these factors favouring revocation, the Tribunal concluded that the significant risk to the Australian community outweighed the other considerations.

The Tribunal affirmed the decision not to revoke the cancellation of the Applicant's visa.