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

This matter concerned an application by Mr Can, a citizen of Turkey, to revoke the mandatory cancellation of his Class AH Subclass 101 (Child) visa. The dispute arose because Mr Can failed to pass the character test due to multiple criminal convictions, including intentionally causing serious injury. The case was heard by Dr Stewart Fenwick, Senior Member, in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by the relevant legislative provisions. This required the Tribunal to consider the principles outlined in Ministerial Direction No. 79, specifically the primary considerations of protecting the Australian community and the best interests of any minor children affected by the decision, as well as other considerations.

The Tribunal's reasoning focused on a comprehensive assessment of Mr Can's criminal history and its implications. It applied the principles in Part C of Ministerial Direction No. 79, noting Australia's sovereign right to determine non-citizen residency and the community's expectation that serious offenders should not remain. The Tribunal found that Mr Can's offending, which commenced as a minor and escalated to include violent crimes, dishonesty offences, and weapons offences, demonstrated a persistent disregard for the law and a high risk of future violent offending. While acknowledging the best interests of Mr Can's son and half-brothers, the Tribunal found that existing court orders and practical realities meant that Mr Can's absence would not significantly alter the current situation for his son, and that his past conduct had negatively impacted his relationships.

Ultimately, the Tribunal concluded that Mr Can's history of offending was very serious and the likelihood of him engaging in further criminal conduct was unacceptably high. This primary consideration weighed strongly against revoking the visa cancellation. Consequently, the Tribunal affirmed the decision to cancel Mr Can's visa.