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

The Administrative Appeals Tribunal (AAT) considered the case of SKDF and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the applicant's visa under section 501CA(4) of the Migration Act 1958 (Cth) due to the applicant failing to pass the character test, specifically having a substantial criminal record. The applicant sought review of the decision to refuse to grant the visa.

The primary legal issue before the Tribunal was whether the discretion to refuse to grant the visa should be exercised, having regard to the applicant's criminal history and the considerations outlined in Ministerial Direction No. 90. This involved assessing the seriousness of the applicant's conduct and the risk posed to the Australian community.

The Tribunal's reasoning focused on Primary Consideration 1 of Ministerial Direction No. 90, which mandates consideration of the protection of the Australian community. The Tribunal noted that the applicant's offending commenced in late 2013 and escalated in seriousness, including convictions for robbery in company, theft, fraud, and vandalism. The Tribunal found the applicant's criminal conduct to be very serious, weighing heavily against revocation. However, after considering all relevant factors under the Direction, the Tribunal concluded that the proper application of the Direction favoured not exercising the discretion to revoke the cancellation of the applicant's visa. The Tribunal found no "another reason" pursuant to s501CA(4)(b)(ii) to revoke the original decision.

The decision under review was affirmed.