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

This matter concerned an application by CHCY, a New Zealand citizen, to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The visa had been cancelled under the *Migration Act 1958* (Cth) due to CHCY having a substantial criminal record, specifically for serious offences involving indecent treatment of a child under 16 and rape. The delegate of the Minister had decided not to revoke this cancellation. The Administrative Appeals Tribunal was required to review this decision.

The primary legal issue before the Tribunal was whether there was "another reason" why the visa should not be revoked, as contemplated by section 501CA(4) of the *Migration Act*. This required the Tribunal to consider the considerations outlined in Ministerial Direction 99, including the protection of the Australian community, the nature and seriousness of CHCY's conduct, the risk of reoffending, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to assess the extent of impediments CHCY might face if removed to New Zealand, including his health, family circumstances, and potential difficulties in establishing himself and maintaining living standards.

The Tribunal reasoned that while CHCY's conduct was very serious and the protection of the Australian community was a paramount consideration, other factors weighed in favour of revoking the cancellation. It noted CHCY's long period of residence in Australia since childhood, his strong community ties, his employment history, and his family responsibilities, including his wife and three Australian-born children. The Tribunal also considered the psychological evidence detailing significant stressors CHCY had experienced prior to his offending, which contributed to a loss of judgment. Crucially, the Tribunal found that CHCY posed a negligible risk of reoffending, having undergone successful therapy and developed coping mechanisms. The Tribunal also found no non-refoulement obligations applied and that CHCY would be able to seek assistance from New Zealand police if he felt threatened there.

Ultimately, the Tribunal concluded that there was another reason why CHCY's visa should not be revoked. The Tribunal set aside the delegate's decision and substituted a new decision that the mandatory cancellation of CHCY's visa be revoked.