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

This matter concerned an application for review by the Applicant, a 27-year-old New Zealand citizen, against a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The Applicant's visa had been mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) following his conviction for four counts of indecently dealing with a child over 13 and under 16, for which he was sentenced to nine months imprisonment. The delegate's decision not to revoke the cancellation was itself subject to review by the Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, as contemplated by section 501CA(4)(b) of the Act. This required the Tribunal to consider the Applicant's character, his offending history, and any mitigating circumstances. A key aspect of this consideration involved the interpretation of "family violence" and the definition of "family member" within the context of the relevant Ministerial Direction, particularly in relation to the Applicant's relationship with the victim and the existence of restraining orders.

The Tribunal reasoned that while the Applicant did not pass the character test due to his substantial criminal record and conviction for a child sex offence, the question of "another reason" for revocation necessitated a careful examination of the legislative framework. The Tribunal determined that the definition of "family member" for the purposes of assessing "family violence" under the relevant Direction was to be informed by the definitions within the Migration Act itself, specifically section 5G(2)(c). It concluded that the victim, while potentially a "relative" in a broader sense, did not fall within the degree of separation contemplated by the text, context, and purpose of "family member" as defined for the purposes of the Direction. Consequently, the Tribunal found that the Applicant had not established "family violence" in the relevant sense.

Ultimately, the Tribunal found that there was "another reason" to revoke the visa cancellation. The reviewable decision of the delegate was set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant's visa.