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

This matter concerned an application by Mr Franklin for review of the decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Visa. The cancellation was based on Mr Franklin failing to pass the character test due to his criminal conduct. The Administrative Appeals Tribunal was required to consider whether there was another reason to revoke this mandatory cancellation.

The legal issues before the Tribunal included determining the seriousness of Mr Franklin's conduct, assessing the risk of him re-offending, and considering the principles outlined in Ministerial Direction No. 90. Specifically, the Tribunal had to weigh the protection of the Australian community against Mr Franklin's circumstances, including any evidence of rehabilitation, and consider the expectations of the Australian community regarding non-citizens who engage in serious criminal conduct.

The Tribunal reasoned that Mr Franklin's offending, which included property damage and resisting lawful authority, was "serious" in nature. It noted the potential for significant physical harm and property damage should he re-offend, and that his conduct consumed considerable community resources. While acknowledging Mr Franklin's admissions regarding alcohol and drug use as coping mechanisms and his past engagement with a psychiatrist, the Tribunal found insufficient evidence of rehabilitation to outweigh the risk to the community. The Tribunal concluded that the risk of further criminal or serious conduct by Mr Franklin was considerable, and that the nature of the harm that could be caused to the Australian community was significant.

Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of Mr Franklin's visa.