XMBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal by XMBQ against the mandatory cancellation of their visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The cancellation was based on XMBQ having a substantial criminal record. The core dispute revolved around whether the discretion to revoke this mandatory cancellation should have been exercised in XMBQ's favour.

The court was required to determine the weight to be given to various considerations under Direction No. 79 when deciding whether to revoke the visa cancellation. Specifically, the court had to assess the primary considerations, including the protection of the Australian community and the expectations of the Australian community, against other considerations such as the applicant's ties to Australia, the risk of harm if returned to their country of origin, and Australia's international non-refoulement obligations.

Deputy President Britten-Jones found that while the seriousness of the offending and the risk of reoffending weighed moderately in favour of the cancellation, other considerations were more compelling. The court accepted that Australia owed non-refoulement obligations to XMBQ, meaning they could not be returned to a place where they would face a specific risk of harm. The evidence indicated a high likelihood of harm if XMBQ were returned to Somalia, particularly given their status as a Christian convert with mental illness and no clan affiliations. The court reasoned that the risk of harm, the potential breach of Australia's international obligations, and the extent of impediments to removal outweighed the primary considerations favouring cancellation.

Consequently, the court set aside the decision to cancel XMBQ's visa.