HLKD and Minister for Home Affairs (Migration)

This matter concerned an application by HLKD for review of the delegate's decision not to revoke the mandatory cancellation of his Class BF transitional (permanent) visa. The cancellation was based on HLKD failing to pass the character test due to having a substantial criminal record, including a conviction for rape. The Administrative Appeals Tribunal was required to consider the primary and other considerations outlined in Ministerial Direction No. 79, particularly whether there was "another reason" why the cancellation should be revoked.

The Tribunal was tasked with determining if HLKD's visa cancellation should be revoked, given his substantial criminal record, which included multiple dishonesty offences and a conviction for rape. This required an assessment of the primary considerations under Ministerial Direction No. 79, such as the protection of the Australian community, the nature and seriousness of his offending, and the risk of further offending. The Tribunal also had to consider other relevant factors, including the best interests of minor children and any other reasons that might warrant revocation.

The Tribunal reasoned that HLKD had a substantial criminal record, satisfying the criteria for mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth). It found that HLKD failed the character test due to his criminal history, including the rape conviction. In applying Ministerial Direction No. 79, the Tribunal noted that sexual offences are viewed very seriously and that HLKD's offending history demonstrated a pattern of dishonesty offences with increasing seriousness. The Tribunal also considered HLKD's responses to his offending history, finding that he tended to downplay circumstances and attribute blame to others. The Tribunal concluded that there was no other reason why the mandatory cancellation of the visa should be revoked.