Kalubuth De Silva and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, Kalubuth De Silva, sought judicial review of the decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the mandatory cancellation of his Partner (Temporary) (Class UK) Visa. The visa had been cancelled under section 501(1) of the *Migration Act 1958* (Cth) on the basis that the applicant did not pass the character test due to having a substantial criminal record. The matter was heard by M Griffin QC SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the original decision to affirm the mandatory cancellation of the applicant's visa was the correct or preferable decision. This required the Tribunal to consider the application of Ministerial Direction No. 90, which outlines the non-exhaustive list of primary considerations to be taken into account when assessing whether to revoke a mandatory visa cancellation. The Tribunal was required to weigh these considerations, including the protection of the Australian community, the seriousness of the offending and future risk, the applicant's lack of remorse and refusal to accept responsibility, the best interests of minor children, and the expectations of the Australian community.

The Tribunal affirmed the original cancellation decision. It found that the seriousness of the applicant's offending and the risk he posed to the Australian community were significant factors. The Tribunal also noted the applicant's lack of remorse and his refusal to accept responsibility for his actions. While acknowledging the best interests of the minor children involved, the Tribunal concluded that these considerations did not outweigh the paramount need to protect the Australian community. The Tribunal also considered the expectations of the Australian community and the impact on Australian business interests, ultimately finding that these factors supported the affirmation of the cancellation.