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

This matter concerned an application by the applicant, XSHM, to the Administrative Appeals Tribunal for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of his Class WE Subclass 050 Bridging General (Temporary) visa. The cancellation was based on the applicant having a substantial criminal record and failing the character test. The applicant sought revocation of the cancellation, arguing there was "another reason" to do so, as contemplated by section 501CA(4)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, having regard to the factors outlined in Direction No. 99. Specifically, the Tribunal had to assess the nature and seriousness of the applicant's conduct, the risk of reoffending, the strength, nature and duration of his ties to Australia, the expectations of the Australian community, and other relevant considerations such as impediments to removal and health issues. The applicant's criminal history, including convictions for carrying knives and resisting police, and his admitted drug addiction with limited insight, were central to these considerations.

The Tribunal reasoned that the applicant's offending was objectively serious and that there was an unacceptable risk of reoffending, particularly given his drug addiction and limited insight into his conduct, which was evident in his demeanour during oral testimony. While acknowledging the applicant's decade-long residence in Australia and past positive contributions to the community through employment, the Tribunal found these factors were outweighed by the seriousness of his criminal conduct and the risk posed to the Australian community. The Tribunal also gave significant weight to the expectations of the Australian community, which weighed heavily against revocation.

Ultimately, the Tribunal concluded that the factors weighing against revocation were of greater significance than those in favour. Accordingly, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.