Stamenkovic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr Vladica Stamenkovic and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the mandatory cancellation of Mr Stamenkovic's Class AR Subclass 151 Former Resident visa under section 501(3A) of the Migration Act 1958 (Cth) due to his failure to pass the character test, stemming from a substantial criminal record. The central question before the Tribunal was whether the discretion to revoke this visa cancellation under section 501CA(4) should be exercised, with particular regard to Ministerial Direction No. 99.

The Tribunal was required to determine the weight to be given to various factors when considering the revocation of the visa cancellation, as guided by Ministerial Direction No. 99. This included assessing Mr Stamenkovic's ties to Australia, the potential impediments he might face if removed to Serbia, and the impact of the decision on victims and Australian business interests. The Tribunal also had to consider the Applicant's criminal history, his personal circumstances, and his contributions, or lack thereof, to the Australian community.

In its reasoning, the Tribunal found that Mr Stamenkovic's contribution to the Australian community had been overwhelmingly negative due to his serial offending and involvement in criminal and drug-related activities. While acknowledging that most of his formative years were spent in Australia, the Tribunal noted that he had been absent for a significant period and had not contributed positively to the community since approximately 2009, instead receiving a disability support pension. Regarding impediments to re-establishing himself in Serbia, the Tribunal accepted that he would face dislocation and stress, but found no substantial language or cultural barriers, and noted his son was in Serbia. The Tribunal concluded that the negative factors, particularly his criminal record and lack of positive contribution, weighed heavily against the revocation of the visa cancellation.

The Tribunal affirmed the decision to cancel Mr Stamenkovic's visa, finding that the discretion to revoke the cancellation should not be exercised.