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

This matter concerned an application by Mr Kelekci (the Applicant) to revoke the mandatory cancellation of his Class BS Subclass 801 (Spouse) visa. The cancellation was triggered by the Applicant failing the character test due to a substantial criminal record. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) was the respondent. The decision was made by Mr S Evans, a Member of the Tribunal.

The Tribunal was required to determine whether the discretion to revoke the mandatory visa cancellation should be exercised, applying Ministerial Direction No. 79. This involved considering the primary considerations of protecting the Australian community from criminal or serious conduct, and the best interests of any minor children affected by the decision. The Tribunal also had to consider other relevant factors.

The Applicant, a citizen of Turkey, had resided in Australia since 2004. His criminal conduct, which spanned from 2012 to 2018, included drug possession, traffic infringements, driving whilst disqualified, contravening an apprehended violence order, destroying property, and most significantly, the supply of prohibited drugs for which he received a sentence of three years and nine months imprisonment with a non-parole period of two years and six months. The Tribunal found that the Applicant's offending was objectively serious and that there was a moderate risk of further harm to the Australian community if the visa cancellation was not affirmed. While the Applicant presented evidence of remorse and a desire to reform, the Tribunal weighed this against the seriousness of his criminal conduct and the potential risks associated with his return to the community. The Tribunal also considered the best interests of any minor children, noting that the Applicant had a relationship with his partner's family, including her brother's children, but did not appear to have direct parental responsibilities for any children under 18.

The Tribunal affirmed the decision to cancel the Applicant's visa, concluding that the primary consideration of protecting the Australian community weighed strongly in favour of non-revocation. The Tribunal found that a moderate risk of further harm of a similar nature to that caused by the Applicant's repeated offences was unacceptable.