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

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant seeking review of a delegate of the Minister's decision not to revoke the mandatory cancellation of his visa. The applicant, a 24-year-old man who arrived in Australia at age 16, had a substantial criminal record, including offences such as indecently dealing with a child, unlawful and indecent assault, and stalking. The delegate's decision was made under section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if he did not pass the character test, whether there was another reason why the visa cancellation should be revoked, having regard to the considerations outlined in Direction No. 79. This Direction mandates consideration of factors such as the nature and seriousness of the offending conduct, the risk to the Australian community, the best interests of minor children in Australia, community expectations, non-refoulement obligations, and the strength, nature, and duration of the applicant's ties to Australia.

The Tribunal found that the "nature and seriousness of the conduct" and the "risk to the Australian community" weighed strongly against the revocation of the visa cancellation. While the applicant had three minor siblings in Australia, the Tribunal noted minimal information was provided regarding their relationship with the applicant and the potential impact of his removal on them. The Tribunal also considered the applicant's ties to Australia, his impediments if returned to Papua New Guinea, and the impact of the COVID-19 pandemic, but ultimately affirmed the delegate's decision not to revoke the cancellation.