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

This matter concerned an application by Mr. Giri for review of a decision to refuse to revoke the mandatory cancellation of his student (subclass 500) visa. The visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because Mr. Giri did not pass the character test due to having a substantial criminal record. The review was heard by Dr. L Bygrave, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was another reason why the original decision to cancel Mr. Giri's visa should be revoked. In making this determination, the Tribunal considered the primary considerations outlined in Ministerial Direction No. 90, which included the protection of the Australian community from criminal and other serious conduct, and the best interests of minor children in Australia. The Tribunal also considered other relevant factors, such as the extent of impediments if Mr. Giri were removed from Australia and his links to the Australian community.

In its reasoning, the Tribunal detailed the applicant's criminal convictions, which included entering a building with intent to commit an indictable offence, sexually touching another person without consent, and carrying out a sexual act with another without consent. These offences arose from an incident where the applicant forced his way into the victim's apartment and subjected her to sexual assault. The Tribunal noted that while the applicant had appealed his sentence, his convictions were upheld. The Tribunal weighed the seriousness of the offending conduct and the risk to the Australian community against other considerations, ultimately finding that these factors did not constitute another reason to revoke the visa cancellation.

The Tribunal affirmed the delegate's decision made on 3 June 2021 not to revoke the mandatory cancellation of Mr. Giri's student visa.