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

This matter concerned an application by JDZP for review of the mandatory cancellation of his visa, with the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs as the respondent. The dispute arose from the applicant's criminal conduct, specifically a sexual offence against a child, which triggered the mandatory cancellation provisions of the *Migration Act 1958* (Cth). The case was heard by Emeritus Professor P A Fairall, Senior Member.

The primary legal issue before the Tribunal was whether to revoke the mandatory visa cancellation, requiring a consideration of the factors outlined in Direction No. 90, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, and the applicant's links to the Australian community and impediments to relocation. The Tribunal was required to weigh these considerations, including primary considerations, in determining whether the cancellation should be set aside and substituted with a decision to grant a visa.

The Tribunal's reasoning focused on the assessment of the primary considerations. Regarding the protection of the Australian community, the Tribunal noted that while the applicant's past offending, apart from the recent sexual offence against a child, was minor and largely historical, the seriousness of the child sexual offence was significant. However, the Tribunal considered that the applicant's prolonged detention and the fact that the mandatory cancellation proceedings had been brought to his attention served as a powerful deterrent, weighing this primary consideration moderately against revocation. In relation to family violence, the Tribunal found the applicant's denial of a domestic violence incident in 2001, which involved allegations of slapping and headbutting, to be not credible, suggesting that his account of merely "escorting" his partner from the premises was unlikely given the circumstances, including the presence of young children and the parties' drug use. This incident, though not resulting in criminal charges, weighed against the applicant.