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

This matter concerned an application by Mr Kilmartin to review the mandatory cancellation of his visa. The dispute arose because Mr Kilmartin possessed a substantial criminal record, including a robbery offence involving violence and an escalating criminal history. The court was required to determine whether the discretion to revoke the mandatory cancellation of Mr Kilmartin's visa should be exercised, considering factors such as the protection of the Australian community, the expectations of the Australian community, and the interests of minor children.

The court was required to consider the primary considerations outlined in Part C of the relevant regulations, which included the protection of the Australian community from criminal conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The court was directed to have regard to the principle that the government is committed to protecting the Australian community from harm by non-citizens and to consider the frequency and seriousness of the non-citizen's offending. The court noted that while most of Mr Kilmartin's offending had been relatively minor, his recent robbery conviction represented an escalation. The court also considered the submission that the robbery was a crime of violence, accepting this to a limited extent due to a push to the taxi driver's face, though the sentencing judge had described the violence as being towards the lower end of the range.

The Senior Member affirmed the decision under review, concluding that the mandatory cancellation of Mr Kilmartin's visa should not be revoked. The court found that Mr Kilmartin's offending had become a real concern, noting his extensive criminal history, the persistence of his offending, and the recent escalation represented by the robbery conviction. While acknowledging the interests of minor children and the expectations of the Australian community, the court ultimately found that these considerations did not outweigh the need to protect the Australian community from criminal activity.