XTZM and Minister for Home Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal for the revocation of a mandatory visa cancellation. The applicant, who was born in Bosnia and Herzegovina and arrived in Australia as a refugee at the age of 14, had a substantial criminal record, including an offence involving violence. The applicant conceded that he did not pass the character test, meaning he could not rely on a specific provision for revocation. The Tribunal was therefore required to consider whether there was "another reason" why the decision to cancel his visa should be revoked, applying Ministerial Direction No. 79.

The primary legal issue before the Tribunal was whether, despite the applicant failing to meet the character test, there were sufficient countervailing considerations to justify revoking the mandatory visa cancellation. This involved weighing the primary consideration of protecting the Australian community from criminal conduct against other relevant factors, as outlined in Ministerial Direction No. 79. The Tribunal had to assess the seriousness and nature of the applicant's offending, the risk of future offending, the strength and duration of his ties to Australia, and the impact of removal on his Australian-born children.

The Tribunal reasoned that while the applicant had lived in Australia for most of his life and had Australian-born children, these factors were outweighed by the seriousness of his criminal conduct. The applicant had been sentenced to imprisonment on seven occasions, with two custodial terms exceeding 12 months, and had breached previous suspended sentences. The Tribunal noted that violent offending, even if not a consistent feature of his history, was a serious matter. Applying the principles in Ministerial Direction No. 79, particularly the expectation that serious offenders should generally forfeit the privilege of remaining in Australia, the Tribunal found that there was no other reason to revoke the mandatory cancellation.

The Tribunal affirmed the decision to cancel the applicant's visa.