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

This matter concerned an application by Mr Sarimsaklio to revoke the mandatory cancellation of his visa, which had been cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test due to having a substantial criminal record. The decision under review was made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Tribunal was required to consider the application for revocation under s 501CA of the Act, having regard to Ministerial Direction No. 90.

The legal issues before the Tribunal were whether there was another reason why the original decision to cancel Mr Sarimsaklio's visa should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Act. In determining this, the Tribunal was bound by Ministerial Direction No. 90, which required consideration of primary and other considerations, including the protection of the Australian community from criminal or other serious conduct, the seriousness of offending and future risk, family violence, the best interests of minor children, expectations of the Australian community, and other considerations such as impediments to removal and ties to Australia.

The Tribunal considered the evidence regarding Mr Sarimsaklio's criminal history, including a sentencing assessment report that indicated a "Medium – High risk of reoffending" due to factors such as anti-social behaviour influenced by substance abuse, a lack of responsibility for his actions, and past violence and aggression. Despite Mr Sarimsaklio's assertions of change and participation in a Subutex program, the Tribunal found that his past conduct and the risk of reoffending were significant. The Tribunal noted that Mr Sarimsaklio’s convictions on 6 March 2020 were not relied upon for the original cancellation decision in 2015, but his substantial criminal record, including a sentence of imprisonment for 20 months, meant he did not pass the character test. Applying the principles in Direction No. 90, particularly the paramount consideration of protecting the Australian community, the Tribunal found that the seriousness of Mr Sarimsaklio's conduct and the risk of reoffending outweighed other considerations.

The Tribunal affirmed the decision to cancel Mr Sarimsaklio's visa.