Kapi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by a PNG citizen, the Applicant, for the non-revocation of the mandatory cancellation of his Child (Class AH) (Subclass 101) visa. The Applicant did not pass the character test due to a substantial criminal record, having been convicted of rape. The dispute before the Tribunal was whether there was "another reason" why the decision to cancel the Applicant's visa should be revoked, with particular consideration given to Ministerial Direction No. 99.

The Tribunal was required to determine the Applicant's recidivist risk and assess whether the evidence presented, including expert opinion and evidence of rehabilitation, constituted "another reason" to revoke the visa cancellation. This involved weighing the seriousness of the Applicant's offending against factors such as his age, maturity, pro-social behaviour, and the absence of any prior or subsequent offending. The Tribunal also had to consider the specific criteria outlined in Ministerial Direction No. 99 regarding the assessment of serious and very serious conduct.

The Tribunal's reasoning focused on the expert evidence of Dr Freeman, which indicated that the Applicant presented a low recidivist risk and that the offence was uncharacteristic, stemming from inexperience with alcohol and immaturity rather than a dependency issue. The Tribunal found that the Applicant had undertaken rehabilitative courses and demonstrated protective factors, including increased maturity and appropriate behaviour in the community. Applying Ministerial Direction No. 99, the Tribunal concluded that while the Applicant's conduct was serious, the low recidivist risk and other mitigating factors constituted "another reason" to revoke the visa cancellation.

Consequently, the Tribunal set aside the decision to cancel the Applicant's visa and substituted it with a decision to revoke the mandatory cancellation.