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

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa. The applicant, who had arrived in Australia in 1994 as a child, did not pass the character test due to criminal convictions, including two counts of breaching a restraining order designed to protect his mother. The Tribunal heard oral evidence from the applicant, his mother, and his ex-partner.

The central legal issue before the Tribunal was whether the discretion to revoke the visa cancellation should be exercised, requiring consideration of the Ministerial Direction 90. This involved assessing the primary considerations, particularly the protection of the Australian community, and the "other considerations" outlined in the Direction, such as international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community.

The Tribunal's reasoning focused on the principles set out in paragraph 5.2 of the Direction, which affirm Australia's sovereign right to determine who may enter or remain, the expectation that non-citizens will be law-abiding, and the community's expectation that those with serious character concerns will be refused entry or have their visas cancelled. The Tribunal specifically considered the nature and seriousness of the applicant's conduct, noting that violent crimes, crimes against women or children, and acts of family violence are viewed very seriously. The applicant's conviction for breaching a restraining order to protect his mother was found to constitute family violence, as it involved behaviour that caused his mother to be fearful. The Tribunal also considered the applicant's history of drug use and his limited ties to Australia, weighed against his long period of residence and his role as a carer for his father.

The Tribunal affirmed the decision to refuse to revoke the visa cancellation.