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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant did not pass the character test, and the decision under review involved the consideration of Ministerial Direction No. 90, specifically in relation to domestic violence.

The primary legal issue before the court was whether the mandatory cancellation of the applicant's visa should be revoked. This required the court to assess the weight to be given to various considerations under Ministerial Direction No. 90, particularly the protection of the Australian community, and to determine if these considerations outweighed the applicant's circumstances, including the issue of domestic violence.

The court reasoned that while the applicant had a history of traffic offences and had been declared a habitual offender, these were generally considered minor. However, the applicant had also been convicted of offending against his female partner in circumstances where children were present, which constituted an act of family violence and was viewed very seriously. The court noted that the issue of family violence was not raised with the delegate who made the initial decision, limiting the weight that could be placed on the applicant's evidence in this regard. Ultimately, the court found that it could not exercise the discretion to revoke the mandatory cancellation of the applicant's visa.

The decision of the delegate of the Minister, dated 1 April 2022, that the mandatory cancellation of the applicant's visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) was affirmed.