CCYW and Minister for Home Affairs (Migration)

This matter concerned an application by CCYW (the applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of a decision to refuse to revoke the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth). The applicant had failed to pass the character test due to having a substantial criminal record, specifically being sentenced to terms of imprisonment exceeding 12 months for multiple counts of sexual offences. The central dispute was whether there was "another reason" why the cancellation decision should be revoked, despite the applicant not passing the character test.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant had a substantial criminal record as defined by section 501(7) of the Act, and therefore did not pass the character test. Secondly, if the applicant did not pass the character test, whether there was another reason to revoke the visa cancellation decision, considering the criteria outlined in Direction No. 65.

In its reasoning, the Tribunal found that the applicant did indeed have a substantial criminal record. This was based on sentencing remarks indicating convictions for two counts of sexual intercourse without consent, for which he was sentenced to four years imprisonment with a non-parole period of two years and six months, and two counts of indecent assault, for which he received a fixed term of one year and six months imprisonment. The Tribunal noted that these sentences, even when served concurrently, resulted in a total effective sentence of four years and six months imprisonment, clearly exceeding the 12-month threshold for a substantial criminal record under section 501(7)(c). The Tribunal then considered whether there was another reason to revoke the cancellation. It examined the applicant's stated concerns about communicating with his children in China due to government surveillance and potential persecution for his religious beliefs. However, the Tribunal gave primary consideration to the protection of the Australian community from criminal or other serious conduct, as mandated by Direction No. 65. It detailed the serious nature of the applicant's offending, including sexual assaults on victims during massages and digital penetration of a victim's anus, noting that violent and sexual crimes, particularly those involving vulnerable individuals, are viewed very seriously.

Ultimately, the Tribunal affirmed the decision of the Minister's delegate to refuse to revoke the cancellation of the applicant's visa. The Tribunal concluded that the seriousness of the applicant's criminal conduct outweighed any other considerations, and therefore, there was no other reason why the cancellation decision should be revoked.