GCXD and Minister for Home Affairs (Migration)

This matter concerned an application for review of a mandatory visa cancellation made by the Minister for Home Affairs against a Malaysian citizen. The applicant, who had resided in Australia since childhood, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 due to having a substantial criminal record, specifically convictions for using a carriage service for child pornography material and possessing child pornography, for which he was serving a custodial sentence. The applicant sought revocation of this cancellation.

The court was required to determine whether there was "another reason" why the mandatory cancellation should be revoked, and if so, whether the discretion to revoke the cancellation should be exercised in the applicant's favour. This involved considering the primary considerations and other considerations as outlined in Ministerial Direction No. 79, particularly the protection of the Australian community and the best interests of minor children. The court had to weigh the seriousness of the applicant's offending against factors such as his rehabilitation efforts, community support, and family ties in Australia.

In its reasoning, the Tribunal applied Ministerial Direction No. 79, focusing on the protection of the Australian community and the risk of reoffending. It acknowledged the extreme seriousness of the applicant's offences involving child pornography, noting the large number of victims and the nature of the material. However, the Tribunal also considered the applicant's remorse, his engagement in counselling, his stated intention to avoid reoffending, and the significant support he received from his family and religious community. Crucially, the Tribunal found that the risk of reoffending was very low, supported by psychological reports. The Tribunal also considered the best interests of the applicant's two Australian-born children, who needed his ongoing parental support.

Consequently, the Tribunal exercised its discretion to revoke the mandatory cancellation of the applicant's visa. The reviewable decision was set aside, and in substitution, the Tribunal decided that the mandatory cancellation of the applicant's Class BB (Subclass 155) Five Year Resident Return visa be revoked.