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

This matter concerned an application for review of a mandatory visa cancellation made under subsection 501(3A) of the *Migration Act 1958* (Cth). The applicant sought to have their visa cancellation revoked under subsection 501CA(4) of the Act. The Administrative Appeals Tribunal (AAT) considered the applicant's extensive criminal history, which commenced in 1998 and continued into adulthood, including offences such as common assault, robbery, stealing, and driving offences. A significant conviction involved dangerous driving occasioning grievous bodily harm, where the applicant was under the influence of methylamphetamine and caused severe injury to her son. The applicant also had convictions for bringing drugs into a detention centre and shoplifting, which resulted in breaches of suspended sentences and community corrections orders.

The AAT was required to determine whether the applicant met the criteria for revocation of the visa cancellation, specifically by considering the primary considerations outlined in Direction 90. These considerations included the protection of the Australian community from criminal or other serious conduct, and whether the applicant's conduct constituted family violence. The Tribunal also had to assess other relevant factors such as international non-refoulement obligations, the extent of impediments to removal, the impact on victims, and the applicant's links to the Australian community.

In its reasoning, the AAT acknowledged the applicant's long history of offending but also noted her participation in various rehabilitation courses, including those focused on anger management, addiction, and healthy relationships. The Tribunal accepted the applicant's evidence that she did not offend during a six-year period of abstinence from drugs, concluding that if she maintained sobriety, there was a reasonable likelihood she would not reoffend. Despite this, the AAT found a moderate risk of reoffending, particularly concerning further physical harm to the community through driving offences or financial harm through theft. The Tribunal also considered the applicant's conduct in the context of family violence, noting a conviction for common assault against her partner.

The Tribunal ultimately set aside the decision under review and substituted a new decision. While acknowledging the moderate risk of reoffending and the nature of the harm that could result, the AAT found that the applicant had demonstrated insight, remorse, and a genuine desire to regain custody of her children. The Tribunal's decision to substitute the original decision indicates that the applicant was successful in her application for review.