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

This matter concerned an appeal by the applicant, Mr Dunasemant, against the non-revocation of a mandatory cancellation of his Class TY Subclass 444 Special Category visa. The applicant did not pass the character test due to criminal convictions. The central dispute was whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 79. The decision was made by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant's criminal conduct was sufficiently serious to warrant the non-revocation of the visa cancellation, and how the principles outlined in Ministerial Direction No. 79, particularly concerning the protection of the Australian community, should be applied. The Tribunal was required to assess the nature and seriousness of the applicant's conduct and the risk to the community should he commit further offences.

The Tribunal reasoned that a criminal conviction and sentence carry significant weight as evidence of the facts upon which they are based, particularly when the applicant seeks to challenge those facts before an administrative tribunal. The Tribunal noted that criminal proceedings involve a high standard of proof and protections for the accused, meaning that the factual findings underpinning a conviction are generally reliable. The applicant's criminal history, including convictions for robbery with violence, entering premises with intent, contravening a domestic violence order, and dangerous driving, was considered serious and attracted the principles of Australia's sovereign right to determine who remains in the country and the community's expectation that visas will be cancelled for serious crimes. The Tribunal found that the applicant had not discharged the onus of demonstrating why these convictions should not be accepted as fact.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.