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

This matter concerned an application by Mr Kamaljeet Singh Brar against the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute arose from the mandatory cancellation of Mr Brar's visa following his conviction for sex assault by touch involving a child under 16, and for failing to answer bail. The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation decision should be revoked, in accordance with section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The central legal issue before the Tribunal was the application of Ministerial Direction No. 99, which provides a framework for decision-makers exercising the discretion to revoke a mandatory visa cancellation. This involved weighing the primary considerations, such as the protection of the Australian community, against other considerations, including the applicant's personal circumstances and rehabilitation. The Tribunal had to assess the seriousness of the offending conduct and the risk of re-offending, while also considering factors that might justify revocation.

The Tribunal reasoned that while the applicant's offending conduct was objectively serious, it fell within the lower end of the range for such offences. Crucially, the Tribunal accepted expert evidence from a clinical forensic psychologist, Mr Jeffrey Cummins, who assessed the applicant as a low risk of re-offending. Mr Cummins' opinion was that the applicant had "comprehensively 'learnt his lesson'" and that alcohol, a contributing factor to the offending, had been ceased since the applicant's charge. The Tribunal found that these factors, particularly the low risk of re-offending and the applicant's demonstrated remorse and rehabilitation efforts, constituted "another reason" to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the decision to refuse to revoke the mandatory cancellation of Mr Brar's visa and substituted a decision to revoke the mandatory cancellation.