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

This matter concerned an appeal by the applicant, Selwyn, against the mandatory cancellation of his Class TY Special Category (Subclass 444) visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had cancelled the visa on the grounds that the applicant did not pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether there was any other reason why the original decision to cancel the visa should be revoked.

The primary legal issue before the Tribunal was the application of Ministerial Direction No. 90, specifically the consideration of "protection of the Australian community" and "expectations of the Australian community" as primary considerations. The Tribunal had to weigh these considerations against other factors raised by the applicant, including the best interests of a minor child, his ties to the community, and the impediments to his removal. The Tribunal was also required to assess the nature and seriousness of the applicant's conduct and the risk of future offending.

The Tribunal reasoned that the applicant possessed a substantial criminal record, as defined by the Migration Act 1958 (Cth), and therefore did not pass the character test. In applying Direction No. 90, the Tribunal found that the applicant's conduct, which involved serious family violence against his former partner, constituted a significant risk to the Australian community. The detailed account of the offending, including physical assault, threats, and unlawful detention, underscored the seriousness of the conduct. The Tribunal concluded that the need to protect the Australian community from such conduct outweighed the applicant's submissions regarding the best interests of his child and his community ties.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, finding no other reason why the original decision should be revoked.