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

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's Class BC Subclass 100 Spouse visa. The Applicant, a Serbian national who had resided in Australia since 2006, did not pass the character test due to having a substantial criminal record. The Applicant's conduct included the downloading of Child Exploitation Material (CEM) and acts of family violence, with his own daughter being a victim of the latter. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The Administrative Appeals Tribunal (AAT) was the court of review.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4) of the *Migration Act 1958* (Cth). In determining this, the Tribunal was required to consider Ministerial Direction No. 90, which outlines the principles and considerations to be applied when assessing character concerns and deciding whether to revoke a mandatory visa cancellation. This involved weighing the protection of the Australian community against any countervailing factors presented by the Applicant.

The Tribunal's reasoning focused on Primary Consideration 1: the protection of the Australian community. It noted that Ministerial Direction No. 90 mandates that decision-makers give particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens who are law-abiding and do not cause harm. The Tribunal found the Applicant's conduct, specifically the CEM offences and family violence against his daughter, to be very serious, as defined by the Direction. It also considered the risk to the Australian community should the Applicant re-offend. The Tribunal concluded that the Applicant's conduct was so serious that even strong countervailing considerations would be insufficient to justify revoking the visa cancellation.

The Tribunal affirmed the original decision, finding that the Applicant did not pass the character test and that there was no other reason why the mandatory cancellation of his visa should be revoked.