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

This matter concerned an application to the Administrative Appeals Tribunal for the revocation of a mandatory visa cancellation. The applicant, XTRG, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) after being sentenced to 18 months imprisonment, thus failing the character test. The delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had refused to revoke this cancellation.

The Tribunal was required to determine whether it had the power to consider the applicant's request for revocation and, if so, whether the discretion under s 501CA of the Act to revoke the mandatory cancellation should be exercised. This involved weighing various considerations, including Direction No 90, against the protection of the Australian community, the impact on victims, the best interests of minor children, the applicant's connections to Australia, non-refoulement obligations, and impediments to the applicant if removed, including the possibility of indefinite detention. The Tribunal also considered the applicant's significant mental health condition and his substantial history of offending.

The Tribunal found that it did have the power to deal with the applicant's request. In exercising its discretion, the Tribunal determined that Australia's non-refoulement obligations and the impediments to the applicant establishing a basic standard of living in South Sudan were the weightiest considerations, to be treated as primary considerations. These, together with other factors favouring revocation, outweighed considerations relating to community protection and expectations.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision revoking the cancellation of the applicant's Global Special Humanitarian (subclass 202) visa.