YZXB and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's Global Special Humanitarian visa. The Applicant, a citizen of Iraq, arrived in Australia at age 14 and subsequently received a visa. However, the Applicant was convicted of aggravated sexual assault in company and sentenced to three years imprisonment with a non-parole period of 18 months, meaning he did not pass the character test under section 501 of the Migration Act 1958. The Minister's delegate decided not to revoke the cancellation, and the Applicant sought review by the Tribunal.

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason why the cancellation decision should be revoked. In making this determination, the Tribunal was bound to consider Ministerial Direction No. 65, which mandates that primary considerations include the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. Other relevant considerations included international non-refoulement obligations, the strength, nature, and duration of ties to Australia, and the extent of impediments if removed from Australia.

The Tribunal found that the Applicant did not pass the character test due to his serious criminal conviction. While the Applicant disputed his involvement in the offence, the Tribunal accepted the evidence of a psychologist that the Applicant had demonstrated some remorse, albeit largely self-referenced. The Tribunal considered the Applicant's ties to Australia, noting he had lived there for 10 years and had family support, but found these ties carried limited weight as he had not undertaken caring or financial responsibilities. The Tribunal also considered the risk of harm in Iraq and impediments to re-establishment, but concluded these did not carry significant weight. Crucially, the Tribunal assessed the risk of the Applicant reoffending as minimal, finding this to be the most important consideration.

Ultimately, the Tribunal determined that the primary consideration of protecting the Australian community weighed in the Applicant's favour due to the minimal risk of reoffending. Consequently, the Tribunal quashed the decision under review and reinstated the Applicant's visa.