Mulligan and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Mulligan to the Administrative Appeals Tribunal (the Tribunal) regarding the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of his visa. Mr Mulligan's visa had been mandatorily cancelled because he did not pass the character test, having been convicted of offences involving violence and receiving a custodial sentence. The central issue before the Tribunal was whether there was "another reason" why the mandatory cancellation decision should be revoked, pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if any mitigating or extenuating factors favoured Mr Mulligan and might justify the revocation of the visa cancellation. This involved assessing whether Mr Mulligan had established, on the balance of probabilities, the existence of such a reason. The Tribunal considered Mr Mulligan's background, his arrival and residence in Australia, his qualifications and business aspirations, and his personal circumstances, including the impact of his imprisonment on his relationships. Crucially, the Tribunal also had to evaluate his extensive criminal history in both Ireland and Australia, which included numerous driving offences, larceny, threatening behaviour, and an assault conviction in Ireland, as well as more recent serious offences in Australia involving violence against a vulnerable victim.

In its reasoning, the Tribunal applied the principles outlined in the relevant Ministerial Direction, which emphasises the privilege of a visa and the expectation that non-citizens will be law-abiding and not cause harm to the Australian community. The Tribunal gave primary consideration to the protection of the Australian community from criminal conduct. It noted that while Mr Mulligan's earlier offending might not have triggered visa cancellation, the serious incident on 11 September 2014, described as an act of "wanton violence" against a vulnerable victim, was of such gravity as to disentitle him to the privilege of a visa. The Tribunal found that Mr Mulligan's conduct and criminal history demonstrated a concerning and persistent pattern of disregard for the law, which had escalated in seriousness. The Tribunal ultimately affirmed the decision not to revoke the mandatory visa cancellation.