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

The applicant sought review of a delegate's decision to cancel his visa under subsection 501(2) of the *Migration Act 1958* (Cth). The applicant, a citizen of the Philippines, had been granted a resident return visa in 2019. In November 2019, he was convicted of an act of indecency in the presence of a child under 10 years, for which he received a wholly suspended four-month prison sentence and a 12-month good behaviour bond. This conviction resulted in him being a registerable offender under the *Crimes (Child Sex Offenders) Act 2005* (ACT) for at least eight years. The delegate cancelled the applicant's visa on the basis that he failed the character test under paragraph 501(6)(e) of the Act.

The Tribunal was required to determine whether the delegate's decision to cancel the applicant's visa was correct or preferable. This involved considering the applicant's failure to pass the character test due to his criminal conviction and then exercising the discretion under subsection 501(2) of the Act, having regard to Direction No. 90. The key legal issues included the seriousness of the offending conduct, the protection of the Australian community, the expectations of the Australian community, the applicant's links to Australia, and the impediments to his removal.

In reaching its decision, the Tribunal acknowledged the seriousness of the applicant's offending conduct, particularly as it occurred in a public place and in the presence of young children. However, the Tribunal also took into account the sentencing judge's findings that the applicant's attention was not directed towards the children and that the mother and children were unaware of the nature of his actions. The Tribunal considered the applicant's remorse, his efforts to cease drug use, and his employment. Weighing these factors against the need to protect the Australian community, the Tribunal concluded that, on balance, the discretion to cancel the applicant's visa should not be exercised.

Consequently, the Tribunal decided to set aside the delegate's decision and, in substitution, determined not to exercise the discretion under section 501(2) of the *Migration Act 1958* to cancel the applicant's visa.