CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (Cth) by CKQV (the Applicant) against a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the Applicant's visa under section 501(2) of the *Migration Act 1958* (Cth). The Applicant's visa was cancelled on the grounds that he did not pass the character test, specifically due to having a substantial criminal record involving sexually based offences involving a child, violence-related offences, breach of court orders, and traffic and drug offending.

The Tribunal was required to determine whether the Applicant's handwritten letter constituted a valid application for review within the prescribed time limits, and whether the discretion to cancel the Applicant's visa should be exercised, having regard to the considerations outlined in Direction No. 79. This involved assessing the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, the strength and duration of the Applicant's ties to Australia, and the impediments to his relocation to Indonesia.

The Tribunal found that the Applicant was properly notified of the visa cancellation on 24 January 2020, as evidenced by his signed acknowledgment receipt. Despite some confusion regarding the date of receipt, the Tribunal accepted the explanation that the documents were handed to the Applicant, who signed for them, and then passed to the police with his personal effects during his transfer to immigration detention. The Tribunal determined that the application for review was lodged within the statutory timeframe, which fell on the next business day, 3 February 2020. In considering the exercise of discretion, the Tribunal found that while the protection of the Australian community and community expectations weighed against the Applicant, these were outweighed by the best interests of his minor children in Australia. Other considerations, including the Applicant's ties to Australia and the impediments to his removal to Indonesia, also favoured non-cancellation.

Ultimately, the Tribunal concluded that the cumulative weight of the best interests of the Applicant's children, his ties to Australia, and the impediments to his removal to Indonesia outweighed the considerations favouring cancellation. Accordingly, the Tribunal set aside the delegate's decision to cancel the Applicant's visa and substituted a decision that the discretion to cancel the visa should not be exercised.