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

This matter concerned an appeal to the Administrative Appeals Tribunal by FWRQ (the applicant) against a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his Class BW Subclass 856 Employer Nomination Scheme visa. The cancellation was based on the applicant failing to pass the character test due to serious criminal offending. The sole issue before the Tribunal was whether there was "any other reason" why the mandatory cancellation should be revoked, applying Ministerial Direction No. 79.

The Tribunal was required to determine whether the applicant had established "any other reason" to revoke the visa cancellation, considering the primary considerations outlined in Ministerial Direction No. 79. These considerations included the protection of the Australian community, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the best interests of any minor children, and any non-refoulement obligations or impediments to removal. The Tribunal specifically had to assess the nature and seriousness of the applicant's conduct, the risk of reoffending, and the applicant's personal circumstances, including his ties to Fiji and his identity as a bisexual man.

The Tribunal acknowledged that the applicant's offending, a serious violent sexual assault and assault occasioning actual bodily harm against his former partner, was of a very serious nature, particularly given its violent and domestic violence context, and that it resulted in a lengthy custodial sentence. However, the Tribunal also considered the applicant's evidence regarding his estrangement from his extended family in Fiji due to past sexual abuse, his concerns about discrimination as a bisexual man in Fiji, and his remorse for his actions. Despite the seriousness of the offending, the Tribunal found that, on balance, the weight of the evidence favoured the revocation of the visa cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the cancellation and, in substitution, revoked the decision to cancel the applicant's visa.