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

This matter concerned an appeal by Mr Stewart against the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Stewart failing to pass the character test due to multiple criminal convictions, including serious domestic violence offences. The Administrative Appeals Tribunal was required to determine whether there was another reason why the mandatory visa cancellation should be revoked, applying Ministerial Direction No. 79.

The Tribunal was tasked with considering various factors outlined in Ministerial Direction No. 79, including international non-refoulement obligations, the strength and duration of ties to Australia, the impact on Australian business interests, the impact on victims, and the extent of impediments to the applicant if removed from Australia. Crucially, the Tribunal had to assess the primary consideration of protecting the Australian community from criminal and other serious conduct, which involved examining the nature and seriousness of Mr Stewart's behaviour and the future risk he posed.

In its reasoning, the Tribunal noted Mr Stewart's extensive criminal history, which included numerous convictions for physical and verbal assaults against former partners, as well as resisting arrest and assaulting a police officer. The sentencing judge had described him as a "serial domestic violence offender," and his sentences had been increasing over time, with imprisonment being imposed. The Tribunal considered that the protection of the Australian community and community expectations weighed heavily against revocation. While other factors were considered, the Tribunal concluded that these were outweighed by the primary considerations.

Consequently, the Tribunal affirmed the delegate's decision to cancel Mr Stewart's visa.