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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 70-year-old man, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having been sentenced to 33 months imprisonment for indecently dealing with a child. The Administrative Appeals Tribunal (the Tribunal) was asked to determine whether there was "another reason" why the visa cancellation should be revoked, considering the primary and other considerations outlined in Direction No. 90.

The Tribunal was required to assess whether the applicant's circumstances warranted the revocation of the visa cancellation, despite his failure to pass the character test due to his criminal conviction. This involved weighing the primary considerations, such as the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, against other considerations including the nature and seriousness of the offending, the risk to the community, the strength and duration of the applicant's ties to Australia, and any family violence. The applicant did not dispute that he failed the character test, but argued for revocation of the cancellation decision.

In its reasoning, the Tribunal considered the evidence presented, including the applicant's oral evidence, witness statements from family and friends, and a psychologist's report. The Tribunal noted that primary considerations are generally given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations. The applicant, who arrived in Australia at age nine, had significant ties to Australia, including family and long-term community involvement. However, the seriousness of his sexual offence against a child was a significant factor against revocation. The Tribunal ultimately affirmed the delegate's decision not to revoke the visa cancellation.