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

This matter concerned an appeal by the Applicant against the mandatory cancellation of his visa, which had been cancelled on the grounds that he had a substantial criminal record and did not pass the character test. The Applicant sought to have the discretion to revoke this mandatory cancellation exercised in his favour. The decision was made by Linda Kirk SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the discretion to revoke the mandatory visa cancellation should be exercised. This involved considering a range of primary considerations, including the protection of the Australian community from criminal or other serious conduct, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of his minor children, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the Applicant's protection finding and the legal consequences of the decision, including the extent of impediments to his removal from Australia.

In reaching its decision, the Tribunal carefully weighed the competing considerations. It acknowledged the seriousness of the Applicant's criminal conduct and the need to protect the community. However, it also took into account the Applicant's long-standing ties to Australia, having arrived as a young child and spent most of his life there. The Tribunal considered the impact of the cancellation on his minor children and the potential for his rehabilitation and reintegration into the community. Crucially, the Tribunal noted that a protection finding had been made in relation to the Applicant, which engaged Australia's non-refoulement obligations. This meant that the Applicant could not be removed to a country where he would face harm, even if his visa was cancelled. The Tribunal found that the Applicant's circumstances, including his personal history, his efforts towards rehabilitation, and his family ties, weighed in favour of revoking the mandatory cancellation.

The Tribunal set aside the mandatory visa cancellation decision and substituted it with a decision to revoke the cancellation. This meant that the Applicant's visa was reinstated.