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

This matter concerned an application for review by SBTY, a Turkish citizen, of the delegate's decision not to revoke the mandatory cancellation of his visa. The visa cancellation was a consequence of SBTY's substantial criminal record, which included multiple breaches of family violence intervention orders, assault with a weapon, and persistent contravention of intervention orders against his former wife and children. The Administrative Appeals Tribunal was required to determine whether there was "another reason" to revoke the cancellation decision, considering Ministerial Direction 79.

The Tribunal was tasked with assessing whether SBTY's circumstances warranted the revocation of the mandatory visa cancellation, despite his failure to pass the character test due to his criminal history. This involved a careful consideration of the principles outlined in Ministerial Direction 79, which guides decision-makers on the exercise of powers under section 501 of the Migration Act 1958. The Direction emphasises Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the low tolerance for serious criminal conduct, particularly against vulnerable individuals.

The Tribunal's reasoning focused on the weight to be given to various considerations under Direction 79. It acknowledged the applicant's significant criminal record, including offences against his former wife and children, which engaged the strong presumption against revocation. The Tribunal considered the preamble to the Direction, noting that serious crimes, especially against women and children, generally lead to forfeiture of the privilege to remain in Australia. The Tribunal also had regard to the fact that the applicant had lived in Australia for a significant period and had children residing in Australia, which are factors that may be considered in determining whether to revoke a cancellation. However, the Tribunal ultimately found that the applicant's criminal conduct, particularly the repeated contravention of intervention orders and the associated harm, was sufficiently serious to outweigh other considerations. The Tribunal set aside the delegate's decision and substituted a new decision to revoke the mandatory cancellation of the applicant's visa.