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

This matter concerned an application by Mr Behtabian (the Applicant) to revoke a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Applicant did not pass the character test due to having a substantial criminal record, including convictions for aggravated burglary and assault. The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the cancellation decision.

The Tribunal was tasked with considering the primary considerations outlined in Direction 79 of the Migration Regulations 1994, which included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the strength and duration of the Applicant's ties to Australia and the impact of his removal.

In its reasoning, the Tribunal acknowledged the Applicant's serious criminal offending, including violent crimes, which weighed heavily against revocation and aligned with community expectations that individuals committing serious offences should have their visas cancelled. However, the Tribunal also considered the best interests of the Applicant's two sons, his nephew, and his niece. While the impact of his removal on his nephew and niece was considered slight, and the impact on his sons was difficult to fully assess, the Tribunal found that revocation would be in the children's best interests, though this consideration was not given significant weight. The Tribunal also noted the Applicant's positive rehabilitative prospects, as assessed by the sentencing judge, which mitigated the risk of recidivism.

Ultimately, the Tribunal affirmed the decision to cancel the Applicant's visa. While the best interests of the minor children and the Applicant's rehabilitative prospects were considered reasons to potentially revoke the cancellation, these were outweighed by the seriousness of his criminal conduct and the expectations of the Australian community.