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

This matter concerned an application for review of the Minister's decision not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa. The applicant failed to pass the character test, triggering the mandatory cancellation. The applicant sought to have this cancellation revoked, arguing there was another reason to do so.

The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation of the applicant's visa, considering the principles outlined in Ministerial Direction No. 79. This involved assessing the applicant's extensive criminal history, which commenced in New Zealand in 1993 and continued through multiple instances of assault, wilful damage, theft, and other offences. The Tribunal had to weigh the seriousness and frequency of this offending against any mitigating factors.

The Tribunal's reasoning focused on Primary Consideration A: the protection of the Australian community. It applied the principles in Ministerial Direction No. 79, which emphasise Australia's sovereign right to determine who remains in the country and the expectation that non-citizens will be law-abiding. The Tribunal considered the nature and seriousness of the applicant's conduct, noting the frequency of offending, the cumulative effect of repeated criminal acts, and the fact that some offences involved violence and were committed against police officers. Despite acknowledging the applicant's contact with family in Australia, the Tribunal found that the applicant's criminal history was so serious that it could not exercise the discretion to revoke the visa cancellation.

Consequently, the Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.