XDJD and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal considered the case of XDJD, an applicant whose visa was mandatorily cancelled due to having a substantial criminal record and failing the character test. The central dispute before the Tribunal was whether the discretion to revoke this mandatory cancellation should be exercised, given the applicant's serious criminal offending, which included acts of violence and a demonstrated risk of harm if he were to re-offend.

The legal issues before the Tribunal were to determine if there was "another reason" why the original decision to cancel the applicant's visa should be revoked, as required by section 501CA(4)(b) of the Migration Act 1958 (Cth). This involved assessing the nature and seriousness of the applicant's criminal offending, including violent crimes, crimes against vulnerable individuals, the sentences imposed by courts, the frequency and cumulative effect of his offending, and the risk of re-offending. The Tribunal was also required to consider whether the Australian community would expect the visa cancellation to be revoked.

The Tribunal's reasoning focused on paragraph 13.1.1 of the relevant Direction, which outlines factors to consider when assessing the seriousness of offending. The Tribunal found the applicant's offending, particularly the stabbing of two women, one of whom was his wife, to be objectively serious. This was compounded by multiple convictions for contravening family violence intervention orders, offences committed whilst on bail and subject to a Community Corrections Order, and the use of knives. The Tribunal noted the significant prison sentences imposed by the courts, the disturbing frequency of offending, and the severe cumulative effects on victims, including his wife and children, and on community resources. The Tribunal concluded that the nature and seriousness of the applicant's conduct weighed strongly against revoking the mandatory visa cancellation.