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

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal (AAT) to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's Class BS subclass 801 (Spouse) visa. The Applicant did not pass the character test, which triggered the mandatory cancellation of their visa. The central dispute was whether there was another reason to revoke this cancellation.

The AAT was required to determine whether there was another reason to revoke the mandatory cancellation of the Applicant's visa, considering the principles outlined in Ministerial Direction No. 90. This involved assessing the primary considerations set out in the Direction, particularly the protection of the Australian community from criminal or other serious conduct. The Tribunal had to weigh the nature and seriousness of the Applicant's past conduct against any risk to the community should further offences or serious conduct occur.

In its reasoning, the Tribunal considered the Applicant's extensive criminal history, which was evidenced by various documents including a nationally coordinated history check, sentencing remarks from New South Wales courts, and transcripts of proceedings. The Tribunal noted that paragraph 8.1(1) of Ministerial Direction No. 90 emphasizes that entering or remaining in Australia is a privilege, contingent on being law-abiding, respecting institutions, and not causing harm. After reviewing the Applicant's criminal offending history, the Tribunal concluded that it could not exercise the discretion to revoke the mandatory cancellation of the visa.

Consequently, the Tribunal affirmed the delegate's decision of 25 February 2021 not to revoke the mandatory cancellation of the Applicant's visa.