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

This matter concerned an application for review of the mandatory cancellation of the applicant's visa. The applicant did not meet the character test due to a substantial criminal record, having been convicted of ten counts of indecent assault against female victims in his professional capacity as a massage therapist. The applicant sought to have the mandatory cancellation revoked, arguing there was another reason why it should be set aside. The case was heard by the Hon. John Pascoe AC CVO, Deputy President.

The primary legal issue before the Tribunal was whether, having regard to the *Migration Act 1958* (Cth) and Direction No. 79, there was another reason why the mandatory cancellation of the applicant's visa should be revoked. This required the Tribunal to weigh the factors that weighed in favour of revocation against those that weighed against it, in order to determine if the interests of the Australian community were sufficiently protected by the cancellation.

The Tribunal considered the applicant's serious criminal conduct, which involved a significant breach of trust and caused distress to vulnerable victims. It also noted the sentencing judge's comments regarding the gravity of the behaviour and the applicant's "reasonable prospects of rehabilitation." The Tribunal took into account the applicant's remorse, his apology to victims, and his understanding of the privilege of living in Australia. Crucially, the Tribunal gave significant weight to the best interests of the applicant's two Australian citizen children, who were financially and physically dependent on him, and whose long-term prospects were considered to be in Australia. The Tribunal also considered the limited impediments the applicant would face upon removal to South Korea, but ultimately found that the best interests of the children, coupled with the strength of the applicant's ties to Australia, outweighed the factors weighing against revocation.

Consequently, the Tribunal determined that there was another reason why the mandatory cancellation of the applicant's visa should be revoked. The reviewable decision was set aside and substituted with a decision to revoke the mandatory cancellation of the applicant's Employer Nomination (Residence) (Class BW) Subclass 857 - Regional Sponsored Migration Scheme Visa.