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

This matter concerned an application for review of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant did not pass the character test, triggering the mandatory cancellation. The applicant sought to have this cancellation revoked, arguing there was another reason to do so. The Administrative Appeals Tribunal was tasked with considering whether to affirm or set aside the Minister's decision.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation of the applicant's visa, as contemplated by the *Migration Act 1958* (Cth). In making this determination, the Tribunal was bound to consider Ministerial Direction No. 79, which outlines the framework for such decisions. Specifically, the Tribunal had to assess Primary Consideration A, the protection of the Australian community, by examining the nature and seriousness of the applicant's conduct to date and the risk to the community should further offending occur.

The Tribunal reasoned that the applicant's criminal history in Australia, commencing in 2001, involved numerous sentencing episodes and 46 offences. These offences were characterised by a predisposition towards dishonesty, a failure to respect property rights, and a disregard for lawful authority, including convictions for criminal trespass, larceny, and dishonesty leading to a significant custodial sentence. The Tribunal also noted a conviction for "Battery" in the United States, which the applicant sought to explain as self-defence. Despite the applicant's submissions that his offending did not necessarily result in identifiable victims or that corporate entities could absorb financial losses, the Tribunal approached these contentions with caution. The Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa.

Consequently, the Tribunal affirmed the decision under review.