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

This matter concerned an application by SKKW (the Applicant) to review the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to his criminal offending. The case was heard by Rebecca Bellamy M.

The primary legal issue before the court was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, as contemplated by the Migration Act 1958 (Cth). This required the court to consider and weigh various factors, including the protection of the Australian community, in accordance with Ministerial Direction No. 90. The court had to assess the nature and seriousness of the Applicant's conduct, the risk to the community, and other relevant considerations.

The court reasoned that while the Applicant's criminal conduct, including two violent offences committed at a young age, was serious and posed a risk to the community, there were mitigating factors. These included the Applicant's difficult childhood, history of drug abuse, and periods of homelessness. Crucially, the court found that there was only a remote possibility of future violent offending and a low risk of a return to drug dependency. Furthermore, the court gave significant weight to the overwhelming evidence that the Applicant is a hard worker and a devoted parent who plays a positive role in the lives of his Australian-based children when not using drugs.

Ultimately, the court determined that the considerations favouring non-revocation, particularly the Applicant's positive contributions and low risk of reoffending, outweighed those favouring revocation. Accordingly, the decision under review was set aside, and the Tribunal exercised its discretion to revoke the mandatory cancellation of the Applicant's visa.