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

This matter concerned an application for review by KSQQ, a Burundian citizen, of a delegate's decision not to revoke the mandatory cancellation of his visa. KSQQ's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, specifically convictions for 12 sexual offences against two minor children, for which he received a sentence of six years and eight months imprisonment. KSQQ sought revocation of this cancellation, and the delegate ultimately affirmed the decision not to revoke. The Administrative Appeals Tribunal was required to consider whether there was "another reason" why the visa cancellation should be revoked, as provided for in section 501CA(4)(b)(ii) of the Act.

The Tribunal's reasoning focused on the interpretation of "another reason" under section 501CA(4)(b)(ii) of the Act, drawing on principles established in *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* and *Viane v Minister for Immigration and Border Protection*. These principles require a genuine and substantial consideration of any significant and clearly expressed claims made in representations that a particular reason exists for revoking the cancellation. The Tribunal noted that KSQQ's failure to pass the character test due to his criminal record meant that section 501CA(4)(b)(i) did not provide a basis for revocation. Therefore, the central issue was whether any other circumstances warranted revocation.

In its findings, the Tribunal considered the best interests of minor children in Australia affected by the decision, concluding that setting aside the delegate's decision was in their best interests. However, it also considered the expectations of the Australian community, as outlined in Ministerial Direction No. 99, which generally expects non-citizens who have engaged in serious criminal conduct, particularly against children, not to be allowed to remain in Australia. The Tribunal found no evidence of physical or emotional trauma suffered by the minor children as a result of KSQQ's conduct. Ultimately, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation.