Ahkeni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to cancel the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Applicant sought to have the discretion to revoke the visa cancellation exercised in his favour. The decision was made by Deputy Justin Owen P.

The primary legal issue before the court was whether the discretion to revoke the visa cancellation under section 501CA(4) of the Migration Act 1958 (Cth) should be exercised. This required the court to consider the Applicant's criminal history, the risk to the Australian community, and the principles outlined in Ministerial Direction No. 99. Specifically, the court had to assess the nature and seriousness of the Applicant's past conduct and the potential risk of future harm to the Australian community should he reoffend.

The court reasoned that the Applicant's criminal convictions, particularly the offences of using an unauthorised pistol and firing a firearm in or near a public place, were extremely serious. The court noted that the nature of the harm that could be caused by a repeat of such conduct was potentially catastrophic and fatal, including significant psychological and mental health consequences for victims. The court found that the Australian community's tolerance for risk decreases as the seriousness of potential harm increases, and that some conduct is so serious that any risk of repetition may be unacceptable. The court concluded that the Applicant's conduct was extremely serious and that the risk of reoffending, given the nature of his past actions, was a significant concern.

The Tribunal affirmed the decision to cancel the Applicant's visa, finding that the discretion to revoke the cancellation should not be exercised.