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

This matter concerned an appeal by the Applicant against the mandatory cancellation of his Class BC Subclass 100 Partner visa, which had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to his failure to pass the character test, specifically by reason of having a substantial criminal record. The Tribunal was required to determine whether there was "another reason" why the original decision to cancel the visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Act.

The legal issues before the Tribunal were to assess the Applicant's character in light of his criminal record and to determine whether, when considering the primary considerations and other relevant considerations outlined in Ministerial Direction No. 90, there existed another reason to revoke the mandatory cancellation. The primary considerations included the protection of the Australian community from criminal or serious conduct, whether the conduct involved family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Other considerations included the extent of impediments to removal, the impact on victims, and the Applicant's links to the Australian community.

The Tribunal found that while the Applicant's criminal offending, particularly drug-related offences and breaches of court orders, presented a significant risk of recidivism, two factors weighed in his favour. Firstly, the best interests of his minor children, one of whom required special care, were a significant consideration. Secondly, the Tribunal accepted that a substantial portion of the Applicant's offending since 2016 was linked to a prescription drug addiction stemming from a motor vehicle accident, which diminished his blameworthiness to a degree. Balancing these factors against the seriousness of his offending and the risk to the community, the Tribunal concluded that these two aspects constituted "another reason" to revoke the visa cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation and, in substitution, decided to revoke the cancellation of the Applicant's visa.