Kuruppu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Kuruppu and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the mandatory cancellation of Mr. Kuruppu's Class BB Subclass 155 Five Year Resident Return visa under section 501(3A) of the Migration Act 1958 (Cth), following his failure to pass the character test due to having a substantial criminal record. The central question was whether the discretion to revoke this cancellation under section 501CA(4) should be exercised.

The Tribunal was required to determine if there was "another reason" why the original decision to cancel the visa should be revoked. In making this determination, the Tribunal was bound to consider Ministerial Direction No. 90, which provides guidance on the factors to be taken into account when exercising such discretion. This included assessing the expectations of the Australian community regarding non-citizens who commit serious offences.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 90, particularly Primary Consideration 4 concerning the expectations of the Australian community. The Tribunal noted that the Direction mandates that decision-makers proceed on the basis of the Government's views regarding community expectations, rather than independently assessing those expectations based on the applicant's specific circumstances. The Tribunal found that the applicant's criminal record, specifically his convictions for driving with a middle range PCA, meant he did not pass the character test. Despite the applicant's submissions regarding his family ties and community involvement, the Tribunal found that the evidence did not establish "another reason" to revoke the mandatory cancellation. The Tribunal also noted the lack of clarity and detail provided by the applicant regarding any minor children in Australia whose interests might be affected by the decision.

Ultimately, the Tribunal affirmed the original decision to cancel the visa. The Tribunal concluded that, when considering the relevant factors under Ministerial Direction No. 90, the evidence did not support the exercise of discretion to revoke the mandatory cancellation of Mr. Kuruppu's visa.