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

This matter concerned an appeal by WZFX against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his visa. WZFX, a citizen of South Sudan, held a Class XB Subclass 202 Global Special Humanitarian visa. The cancellation was based on WZFX failing to pass the character test due to having a substantial criminal record, which included convictions for violent offences. The core of the dispute revolved around whether there was "another reason" for the Tribunal to revoke the mandatory cancellation of WZFX's visa under section 501CA of the *Migration Act 1958* (Cth), with Ministerial Direction No. 99 being applied.

The legal issues before the court were whether the Tribunal could lawfully consider WZFX's juvenile offending in light of the High Court's decision in *Minister for Immigration, Citizenship and Multicultural Affairs and Thornton*, and if so, how that offending should be weighed. The Minister contended that *Thornton* was distinguishable as WZFX's offending occurred in Victoria, unlike the Queensland regime considered in *Thornton*. Alternatively, the Minister argued that even if *Thornton* applied, the Tribunal could still consider the underlying conduct of the juvenile offending for the purpose of assessing anti-social behaviour. The Tribunal was required to determine if the Applicant's denial of knowledge of the "Apex street gang" and his association with it was credible, particularly in light of police information suggesting he was a founding member and had offended with known gang members.

The Tribunal reasoned that it could and should take WZFX's juvenile offending into account for the review application, following the approach in *DGKW & Minister for Immigration, Citizenship and Multicultural Affairs*. The Applicant's evidence regarding his lack of knowledge of the Apex street gang was examined, including his admission to associating with the "wrong crowd" and engaging in drinking and smoking as a coping mechanism for depression. The Tribunal noted that while the Applicant denied being a member or founding member of the Apex gang, he conceded that his criminal offending history suggested he was a violent person and that his brother was a "known serious offender," although WZFX claimed ignorance of his brother's criminal history. The Tribunal concluded that an adverse decision would likely result in either removal to South Sudan or indefinite detention, but acknowledged that the potential legal consequences for the Applicant could not be determinative of the decision.