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

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen who had resided in Australia since 1994, had his visa cancelled on character grounds following convictions for sexually-based offending against a child, for which he served a period of imprisonment. The applicant sought revocation of the cancellation, which was refused by the delegate, leading to the present application for review.

The Tribunal was required to determine whether there was ‘another reason’ why the mandatory visa cancellation should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved assessing the seriousness of the applicant's offending, his rehabilitation prospects, and other relevant considerations, including the strength of his ties to Australia and the potential impact of his removal on his family. The Tribunal considered extensive evidence, including psychological reports, statements from family members, and sentencing remarks from the Magistrates’ Court.

The Tribunal reasoned that while the applicant's offending against a child was serious and abhorrent to Australian society, several factors weighed in favour of revoking the visa cancellation. These included the applicant's lack of prior criminal history, his acceptance of responsibility, his engagement in offence-specific counselling and rehabilitation, and the expert evidence indicating a low risk of recidivism. The Tribunal also gave significant weight to the applicant's strong ties to Australia, his supportive family relationships, particularly with his teenage son, and the potential adverse consequences for his mental health and his family if he were repatriated. The Tribunal concluded that, in the specific circumstances of this case, the applicant did not constitute an unacceptable risk to the Australian community.

Consequently, the Tribunal set aside the delegate's decision and substituted a new decision revoking the mandatory cancellation of the applicant's visa.