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

This matter concerned an application by Mr Martin for review of the Minister's decision not to revoke the mandatory cancellation of his visa. The mandatory cancellation was triggered by Mr Martin being sentenced to a term of imprisonment of 12 months or more. The dispute before the Tribunal was whether there was another reason to revoke this mandatory cancellation. The decision was made by Mrs J C Kelly, Senior Member.

The Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation of Mr Martin's visa, having regard to Ministerial Direction No. 90. This involved considering the primary considerations outlined in the Direction, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's conduct, and the risk to the Australian community. The Tribunal also had to consider other considerations, such as the best interests of minor children, community expectations, and the extent of impediments to removal.

The Tribunal reasoned that while Mr Martin's conduct, which included assaults occasioning actual bodily harm and stalking/intimidation offences against his former partner, was serious, there were other factors that weighed in favour of revoking the visa cancellation. The sentencing magistrate had noted Mr Martin's lack of prior criminal history and his early guilty plea, which resulted in a non-custodial sentence. The Tribunal considered the impact of removal on Mr Martin's minor children, who were Australian citizens and relied on him. It also took into account Mr Martin's links to the Australian community and the fact that he had expressed remorse and a desire to address his behaviour.

The Tribunal concluded that there was another reason to revoke the mandatory cancellation of Mr Martin's visa pursuant to section 501CA(4)(b)(ii) of the Act. Consequently, the reviewable decision not to revoke the cancellation was set aside, and in substitution, it was decided that the cancellation should be revoked.