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

This matter concerned an application by the Applicant to revoke the mandatory cancellation of his Class BC Subclass 100 Spouse visa. The cancellation was made under section 501(3A) of the Migration Act 1958 (Cth) on the basis that the Applicant did not pass the character test due to having a substantial criminal record. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the Applicant had a substantial criminal record, and if so, whether there was another reason why the original decision to cancel his visa should be revoked under section 501CA(4) of the Act. In determining this, the Tribunal was required to consider Ministerial Direction No. 99, which sets out the principles and considerations for making such decisions.

The Tribunal reasoned that the Applicant did indeed have a substantial criminal record, a fact not disputed. In considering the discretion to revoke the cancellation under section 501CA(4), the Tribunal applied Ministerial Direction No. 99. It noted that Australia has a sovereign right to determine who remains in the country and that non-citizens engaging in serious conduct should expect to forfeit the privilege of remaining. The Tribunal specifically considered the Applicant's criminal conduct, including acts of family violence against his former partner, which occurred in the presence of their young children. The Tribunal found that this conduct was viewed very seriously by the Australian Government and community. While acknowledging the principle that a higher level of tolerance may be afforded to non-citizens who have lived in Australia for most of their lives or from a very young age, the Tribunal found that the Applicant's offending, which escalated from minor matters to serious family violence, weighed heavily against revoking the visa cancellation. The lack of a psychologist's report to assess the risk of reoffending also made the assessment more difficult.

The Tribunal affirmed the original decision to cancel the Applicant's visa, finding that there was no other reason why the cancellation should be revoked.