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

This matter concerned an appeal to the Tribunal regarding the mandatory cancellation of the Applicant's Class BF Transitional (Permanent) visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment for over 12 months for aggravated break and enter and commit serious indictable offence while armed. The Applicant sought revocation of this cancellation.

The primary legal issue before the Tribunal was whether the discretion to refuse to grant the visa should be exercised, considering the Applicant's criminal history and the Ministerial Direction No. 90. This involved assessing the weight to be given to both primary and other considerations, particularly the protection of the Australian community from criminal activity. The Tribunal was required to consider the nature and seriousness of the Applicant's conduct and the risk to the community should further offences be committed.

The Tribunal reasoned that while "other considerations" are important, they are distinct from "secondary" considerations and must be given appropriate weight alongside primary considerations. Ministerial Direction No. 90 mandates that decision-makers consider the commitment to protecting the Australian community, the expectation that non-citizens will be law-abiding, and the potential harm to individuals or the community. The Tribunal noted that violent crimes, such as the Applicant's offence of aggravated break and enter, are viewed very seriously by the Australian Government and community.

Ultimately, the Tribunal determined that in the proper application of the Direction, the visa cancellation should not be revoked. The decision under review was affirmed.