XFCS and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant to revoke the mandatory cancellation of his visa, which had been cancelled due to his failure to pass the character test, specifically due to serious and violent offending. The dispute was heard by R Cameron, Senior Member, of the Tribunal.

The Tribunal was required to determine whether there was another reason why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4)(b) of the Migration Act 1958 (Cth). In making this determination, the Tribunal was bound to consider the primary considerations outlined in Ministerial Direction No. 65, which included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that the Applicant's offending, which commenced in 2005 and continued until his arrest in 2012 for offences including blackmail, common-law assault, intentionally causing injury, and theft, was very serious. This seriousness was assessed against the factors in paragraph 13.1.1 of the Direction, including the nature of the offences and the cumulative effect of repeated offending. The Tribunal found that a relapse by the Applicant would likely result in violent behaviour, posing an unacceptable risk of future harm to the Australian community, which weighed heavily against revocation. Furthermore, the Tribunal placed no weight on the best interests of minor children, as the Applicant had not identified any such children affected by the decision, and the evidence regarding his assistance to a friend and her children was insufficient. Finally, the Tribunal considered the expectations of the Australian community, which expects non-citizens to obey Australian laws, and concluded that the nature of the Applicant's character concerns and offences meant the community would expect him not to hold a visa.

The Tribunal affirmed the mandatory cancellation of the Applicant's visa, ordering that the decision not be revoked.