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

This matter concerned an application to review a decision to affirm the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to a history of criminal offending. The central question before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation decision, having regard to Ministerial Direction No. 79.

The Tribunal was required to determine the weight to be given to Primary Consideration A, "Protection of the Australian Community," as outlined in Ministerial Direction No. 79. This involved assessing the nature and seriousness of the Applicant's past conduct and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. The Tribunal also had to consider the Applicant's submissions regarding his literacy issues and embarrassment in disclosing his offending history.

In its reasoning, the Tribunal acknowledged the principle that remaining in Australia is a privilege for non-citizens, who are expected to be law-abiding. The Applicant's criminal record, spanning multiple jurisdictions and involving drug-related offences of increasing seriousness, including planned and premeditated conduct, some committed while on bail, and offences involving violence, was found to be significant. The Tribunal also considered allegations of providing false and misleading information on incoming passenger cards, which the Applicant attributed to poor literacy and embarrassment. Despite these submissions, the Tribunal found that the Applicant's conduct was serious and posed a risk to the community.

Consequently, the Tribunal determined that it could not exercise the discretion to revoke the cancellation of the Applicant's visa. The decision under review was affirmed.