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

This matter concerned an application by LDDW, a citizen of El Salvador, for the revocation of the mandatory cancellation of his Class BF Transitional (Permanent) visa. The cancellation was triggered by LDDW failing the character test due to convictions for sexually based offences involving a child. The Administrative Appeals Tribunal was required to consider whether there was another reason to revoke the cancellation, having regard to Ministerial Direction No. 79.

The primary legal issues before the Tribunal were whether LDDW failed the character test, and if so, whether there was another reason to revoke the mandatory cancellation of his visa. In considering revocation, the Tribunal was obliged to apply Ministerial Direction No. 79, which outlines primary considerations including the protection of the Australian community, the best interests of any minor children in Australia affected by the decision, and the expectations of the Australian community. Other considerations included international non-refoulement obligations, the strength and duration of ties to Australia, and the extent of impediments to removal.

The Tribunal found that LDDW failed the character test based on evidence of his convictions for six charges of indecent act with a child under 16 and one charge of soliciting a child under 18 for an indecent act. He had been sentenced to four months imprisonment followed by an 18-month community corrections order and placed on the Sex Offender Register for life. In applying Direction No. 79, the Tribunal considered the seriousness of LDDW's conduct, noting the vulnerability of the victim and the breach of trust involved. The Tribunal also considered the risk to the Australian community should LDDW re-offend, acknowledging the sentencing Magistrate's remarks about LDDW's low risk of re-offending and genuine remorse, but also the repeated nature of the offending. The Tribunal ultimately affirmed the decision to cancel LDDW's visa, finding no other reason to revoke the cancellation.