BLBY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The applicant, BLBY, sought review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test, having been sentenced to 12 months' imprisonment or more for a sexual offence against a child. The applicant also contended that Australia had non-refoulement obligations towards him if he were returned to Sri Lanka. The Administrative Appeals Tribunal was required to determine whether the delegate's decision to refuse revocation was correct.

The Tribunal was tasked with considering various factors under Direction No. 90, including the primary considerations of protection of the Australian community and the expectations of the Australian community, as well as other considerations such as the best interests of minor children, the strength, nature, and duration of ties to Australia, and the extent of impediments if returned to Sri Lanka. The Tribunal had to weigh these considerations, giving primary considerations generally greater weight. The nature and seriousness of the applicant's criminal offending, the risk to the Australian community, and the applicant's remorse and rehabilitation were central to the assessment.

In its reasoning, the Tribunal noted that the applicant's offending, a sexual offence against a child, was considered very serious under Direction No. 90. The Tribunal considered the applicant's submissions regarding his fear of returning to Sri Lanka due to his ethnicity and past suspicions of LTTE involvement, but also noted his conflicting statements about his offending and his initial denial of it to authorities. The Tribunal found that the primary considerations of protecting the Australian community and community expectations weighed heavily against revocation. While acknowledging the best interests of the applicant's minor children and his ties to Australia as factors favouring revocation, these were outweighed by the seriousness of his criminal conduct and the risk he posed. The Tribunal concluded that the applicant's circumstances did not engage Australia's non-refoulement obligations.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal found that the weight of the considerations, particularly the protection of the Australian community from serious criminal offending, meant that revocation was not warranted.