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

This matter came before Mr Rob Reitano, Member, of the Administrative Appeals Tribunal. The applicant, YCNS, sought to have his visa cancellation revoked, which had been made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs due to very serious criminal offending and a risk of reoffending. The applicant contended that the cancellation decision should be set aside and substituted with a decision to revoke the cancellation.

The Tribunal was required to determine the weight to be given to various considerations, including the nature and seriousness of the applicant's criminal conduct, the risk of reoffending, the strength, nature, and duration of the applicant's ties to the Australian community, the expectations of the Australian community, and the legal consequences of the decision, including potential non-refoulement obligations. The applicant claimed he feared harm in Sri Lanka due to his past involvement with or suspected links to the Liberation Tigers of Tamil Eelam (LTTE).

The Member found that while the applicant's criminal conduct was very serious, the risk of reoffending was low, which weighed against revocation but not strongly. The applicant had resided in Australia for nearly 12 years, with his serious offending occurring only after more than ten years of residence. He had been employed during this time and had some, albeit recent and few, meaningful connections to the Australian community, including a volunteer carer and a Uniting Church leader. These factors weighed in favour of revoking the visa cancellation. The expectations of the Australian community weighed moderately in favour of non-revocation, given the serious nature of the offending. Crucially, the applicant's claim of fearing harm in Sri Lanka due to his alleged past association with the LTTE, including claims of torture and threats to his life, engaged Australia's non-refoulement obligations, requiring careful consideration.

The Member set aside the decision to cancel the applicant's visa and substituted it with a decision to revoke the cancellation.