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

This matter concerned an application for review of a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant, KVRK, had failed to pass the character test due to convictions for supplying a prohibited drug of an indictable quantity and assault occasioning actual bodily harm. The Administrative Appeals Tribunal was required to determine whether there was another reason why the visa cancellation should be revoked.

The Tribunal was tasked with considering the considerations outlined in Ministerial Direction No. 99, which include the nature and seriousness of the offending conduct, the protection of the Australian community, family violence, the strength and duration of ties to Australia, the best interests of minor children in Australia, community expectations, the legal consequences of the decision, and impediments to removal. The Tribunal noted that while decision-makers are bound to consider these factors, they are not limited to them, and the weight given to each consideration is a matter for the decision-maker, not subject to a formulaic approach. The Tribunal emphasised that the outcome depends on the application of the Direction to the specific evidence of the individual case.

In its reasoning, the Tribunal considered the principle that remaining in Australia is a privilege contingent on law-abiding conduct and the expectation that non-citizens will not cause harm. It assessed the applicant's criminal history, which included convictions for drug supply and multiple instances of assault, including domestic violence. The Tribunal concluded that, having regard to all relevant material, the correct and preferable decision was not to revoke the cancellation of the applicant's visa. Consequently, the Tribunal affirmed the decision under review.