XDJD and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal to revoke the mandatory cancellation of the applicant’s visa. The visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to the applicant’s substantial criminal record and the fact that he was serving a sentence of imprisonment. The applicant sought revocation of this cancellation, which was refused by a delegate of the Minister, and this decision was subsequently affirmed by the Tribunal. The Federal Court had previously quashed two Tribunal decisions, remitting the matter for rehearing on two occasions.

The primary legal issues before the court were whether the Tribunal had erred in its consideration of the mandatory cancellation of the applicant's visa and the subsequent refusal to revoke it. This involved determining the appropriate weight to be given to various considerations, including primary considerations and other considerations, in assessing whether to revoke the cancellation. The court was also required to consider the impact of amendments introduced by the *Migration Amendment (Clarifying International Obligations for Removal) Act 2021* (Cth) on the assessment of the applicant's case, particularly in relation to Australia's non-refoulement obligations.

The court reasoned that in applying the relevant considerations, information from independent and authoritative sources should be given appropriate weight, with primary considerations generally outweighing other considerations. The court noted that the amendments introduced by the *Migration Amendment (Clarifying International Obligations for Removal) Act 2021* clarified that the duty to remove an unlawful non-citizen under s 198 of the *Migration Act* is not enlivened if doing so would breach Australia's non-refoulement obligations, as identified in a protection visa assessment process. In this instance, the court found that the seriousness of the applicant's criminal offending, which involved domestic violence, outweighed his non-refoulement obligations. The court affirmed the Tribunal's decision.