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

This matter concerned an application by Mr Baradas for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his visa. Mr Baradas, a citizen of the Philippines, had been granted permanent residency in Australia in 2017. However, he was subsequently convicted of two counts of unlawful sexual intercourse, which occurred in 2017. The sentencing court had imposed suspended sentences, noting that Mr Baradas' prospects of reoffending were "extremely low". The Tribunal was required to determine whether to affirm the delegate's decision to refuse revocation or to set it aside.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should revoke the mandatory cancellation of Mr Baradas' visa. This involved a de novo consideration of the merits of the case, weighing various factors including the seriousness of the offending, the interests of Mr Baradas' minor children, the impact on his wife, and his prospects of reoffending. The Tribunal was also required to consider any impediments Mr Baradas might face upon removal to the Philippines, though it was cautioned against applying Australian standards of living in this assessment.

The Tribunal reasoned that while the offending was serious, the sentencing court's explicit finding of extremely low prospects of reoffending was a significant factor. Furthermore, the interests of Mr Baradas' minor children were considered a primary consideration. The Tribunal accepted evidence that Mr Baradas' wife wished to resume their married life and that his removal would substantially interrupt or destroy their relationship. While acknowledging the gravity of the crime, the Tribunal concluded that, in all the circumstances and on the evidence adduced, the preferable decision was to revoke the cancellation decision, finding that Mr Baradas would make a significant future contribution to his family's welfare. The Tribunal set aside the decision under review and substituted a decision that the cancellation of Mr Baradas’ visa be revoked.