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

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the applicant's Global Special Humanitarian (Class XB) (Subclass 202) visa. The applicant did not pass the character test, leading to the mandatory cancellation. The dispute centred on whether the discretion to refuse to grant the visa should be exercised, considering Ministerial Direction No. 90, and whether there were other reasons why the mandatory cancellation decision should be revoked. The decision was made by Theodore Tavoularis SM.

The court was required to determine the legal issues surrounding the application of Ministerial Direction No. 90 to the applicant's circumstances. Specifically, the court had to consider the framework provided by the Direction for decision-makers when assessing character concerns, including Australia's sovereign right to determine who may remain in the country, the expectation that serious conduct will lead to visa refusal or cancellation, and the varying levels of tolerance for criminal conduct based on an individual's ties to the Australian community. The court also had to weigh the primary considerations, such as the protection of the Australian community, family violence, the best interests of minor children, and community expectations, against other relevant considerations, including international obligations, impediments to removal, and the impact on victims.

The court reasoned that paragraph 5.2 of Ministerial Direction No. 90 provides a framework for decision-makers, emphasising Australia's sovereign right to exclude non-citizens of character concern and the expectation that serious conduct will result in visa denial or cancellation. The court noted that while Australia has a low tolerance for criminal conduct, it may afford a higher tolerance for those who have lived in the community for a significant period. The court applied the primary considerations outlined in paragraph 8 of the Direction, including the protection of the Australian community and community expectations, and other considerations from paragraph 9, such as links to the Australian community. The court found that the applicant's unlawful conduct in Australia could be characterised as "very serious," and assessed the risk to the Australian community should the applicant engage in further criminal or serious conduct, considering the nature of potential harm and the likelihood of re-offending. The court also considered that the weight of certain sub-paragraphs against the applicant would have been different if pending charges had been finalised adversely.