KMDC and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of KMDC and the Minister for Home Affairs concerning the mandatory cancellation of the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant failed to pass the character test due to a substantial criminal record, specifically a conviction for maintaining an unlawful relationship with a child and a sentence of six years imprisonment with a non-parole period of 15 months. The central dispute was whether there was another reason why the cancellation decision should be revoked.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant passed the character test as defined by subsection 501(6) of the Act, which includes having a substantial criminal record. Secondly, if the applicant did not pass the character test, whether there was "another reason" why the cancellation decision should be revoked, a consideration guided by Direction No. 79.

In its reasoning, the Tribunal found that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more, thus satisfying the definition of a substantial criminal record under subsection 501(7)(c). The Tribunal then considered the primary considerations under Direction No. 79, focusing on the protection of the Australian community from criminal or other serious conduct. The Tribunal detailed the serious nature of the applicant's conduct, which involved grooming a 12-year-old child over nine months and engaging in sexual offences for approximately 18 months, leading to the child's absence from school. The Tribunal concluded that the Minister's delegate's decision to refuse to revoke the visa cancellation was correct.

Consequently, the Tribunal affirmed the decision under review, meaning the applicant's visa cancellation was upheld.