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

This matter concerned an application to review the mandatory cancellation of the applicant's visa. The applicant, a 50-year-old man who had resided in Australia for 24 years, had been convicted of two offences of indecent treatment of a child under 16, occurring eight years apart. The Minister had cancelled his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to the serious nature of the offending involving children. The applicant sought revocation of this cancellation decision.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation decision, as contemplated by Direction 90. This required the Tribunal to weigh the mandatory considerations against any other relevant considerations, including the applicant's individual circumstances. The Tribunal was tasked with conducting a hearing on the merits and determining the correct or preferable decision based on the evidence before it.

The Tribunal reasoned that while the offending was serious and presented a substantial risk of reoffending, several factors weighed in favour of revocation. These included the applicant's below-average cognitive functioning, which suggested he did not make calculated choices to offend and had limited insight into his behaviour. The Tribunal also noted the infrequent nature of the offending and the applicant's genuine interest in rehabilitation. Crucially, the Tribunal found that the applicant was more likely to receive and engage with tailored rehabilitation treatment in Australia, with the support of his adult children, than he would in New Zealand. This family support and the likelihood of successful treatment were considered significant "other reasons" that could outweigh the strong primary considerations against revocation.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision that the cancellation be revoked.