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

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal for the non-revocation of a mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to having a substantial criminal record, which included property offences, vehicle offences, and violent offences, as well as conduct involving family violence. The Applicant sought to argue that there was "another reason" why the decision to cancel his visa should be revoked, with consideration given to Ministerial Direction No. 99.

The Tribunal was required to determine whether the Applicant had established "another reason" to revoke the mandatory visa cancellation, by assessing the weight of various considerations outlined in Ministerial Direction No. 99. Specifically, the Tribunal had to consider the nature and seriousness of the Applicant's offending, the risk of recidivism, and the issue of family violence, in light of the evidence presented regarding the Applicant's rehabilitation efforts.

The Tribunal reasoned that while the Applicant had made some attempts at rehabilitation, these measures had not been tested in the community, and there was a lack of clinical assessment regarding the risk of re-offending. The Tribunal found the Applicant's offending, including aggravated assault and contraventions of a domestic violence protection order, to be very serious, and that the risk of recidivism was unresolved and unacceptable. Furthermore, the Tribunal noted the serious concerns the government holds regarding non-citizens who engage in family violence. Applying Ministerial Direction No. 99, the Tribunal concluded that a holistic view of the evidence favoured affirming the decision to not revoke the visa cancellation.

The Tribunal affirmed the decision made by the Respondent's delegate dated 24 November 2023 to not revoke the mandatory cancellation of the Applicant's visa.