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

This matter concerned an application by MKNT, a 39-year-old Turkish national, to the Administrative Appeals Tribunal (AAT) to revoke the mandatory cancellation of his visa. The applicant had arrived in Australia as a child and had resided in the country for over 30 years without leaving. The dispute arose from the applicant's failure to pass the character test due to a significant criminal record, which led to the mandatory cancellation of his visa. The AAT was required to consider whether there was "another reason" why the original decision to cancel the visa should be revoked, taking into account various factors relevant to the protection of the Australian community and the best interests of minor children.

The AAT was tasked with determining whether the applicant's circumstances constituted an "other reason" for revoking the mandatory visa cancellation under subparagraph 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the Tribunal to weigh the protection of the Australian community against other relevant considerations, including the strength, nature, and duration of the applicant's ties to Australia, the extent of impediments to his removal, and the best interests of any minor children in Australia. The Tribunal also had to consider the nature and seriousness of the applicant's conduct and the risk to the community should he reoffend.

In its reasoning, the Tribunal acknowledged the applicant's extensive criminal history, which included numerous violent offences, dishonesty offences, drug offences, and other miscellaneous convictions, resulting in periods of imprisonment. However, the Tribunal also considered the applicant's long-standing ties to Australia, having arrived as a child and having no family or language proficiency in Turkey, and his self-identification as Australian. The Tribunal noted that while the protection of the Australian community from harm is a primary consideration, it must be balanced with other factors. The Tribunal declined to make adverse findings regarding alleged incidents in immigration detention due to a lack of evidence.

The Tribunal ultimately set aside the decision to refuse to revoke the mandatory visa cancellation and substituted a new decision to revoke the mandatory cancellation. This outcome indicates that the Tribunal found that the applicant's circumstances, when considered holistically, presented an "other reason" that justified the revocation of the visa cancellation, despite his criminal record.