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

This matter concerned an application for judicial review of a decision to affirm the non-revocation of a mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant did not pass the character test, leading to the mandatory cancellation of his visa. The applicant sought to have this cancellation revoked, arguing there was another reason to do so.

The court was required to determine whether there was another reason to revoke the mandatory cancellation of the applicant's visa, considering the principles outlined in Ministerial Direction No. 79. This involved assessing the primary considerations, particularly the protection of the Australian community from harm, and evaluating the nature and seriousness of the applicant's past conduct and the risk of future offending. The court also had to consider other relevant factors, such as the applicant's ties to Australia and the impact on his family.

The court applied the principles set out in Ministerial Direction No. 79, which emphasise Australia's sovereign right to determine who remains in the country and the community's expectation that non-citizens who commit serious crimes will be removed. The court found that the applicant's extensive criminal history, spanning from 1999 to 2018, which included over 30 offences, six periods of imprisonment, and numerous traffic infringements, demonstrated a serious and persistent pattern of offending. The court noted that crimes of a violent nature, particularly against vulnerable members of the community, are viewed very seriously. Given the nature and frequency of the applicant's offending, the court concluded that the risk to the Australian community if he were to re-offend was unacceptable, and therefore, it could not exercise the discretion to revoke the visa cancellation.

The decision under review was affirmed.