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

The Administrative Appeals Tribunal considered the case of Lam and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the applicant's visa due to his failure to pass the character test, stemming from a substantial criminal record. The applicant sought to have the visa cancellation revoked.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the applicant's visa should be revoked, as provided for by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the Tribunal to assess various considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children affected, and the expectations of the Australian community.

The Tribunal's reasoning focused on the nature and seriousness of the applicant's offending conduct, specifically his conviction for attempted murder involving a violent assault and strangulation of his former partner. The sentencing judge in the Supreme Court of Queensland had described the assault as particularly serious, noting that the applicant would have killed the victim but for police intervention and that his intent was murderous. Despite acknowledging the applicant's diagnosed post-traumatic stress disorder, persistent depressive disorder, and alcohol use disorder, the sentencing judge found no causal relationship between these conditions and the brutal behaviour towards the victim, stating there was good reason for the community to be protected from him. The Tribunal also considered the expectations of the Australian community, which generally expects non-citizens to obey Australian laws and views serious criminal conduct, particularly acts of family violence or serious crimes against vulnerable individuals, as grounds for visa refusal or cancellation.

The Tribunal found that the consideration of the best interests of minor children was neutral as the applicant had no children. The consideration of the protection of the Australian community was assessed in light of the serious offending conduct and the risk of reoffending. The Tribunal also considered the expectations of the Australian community, which, given the nature of the applicant's crimes, would expect that such an individual should not be permitted to remain in Australia. Ultimately, the Tribunal affirmed the original decision to cancel the applicant's visa.