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

This matter concerned an application for review of a decision to cancel the Applicant's Subclass 444 Special Category (Temporary) visa. The Applicant, a citizen of New Zealand, had failed to pass the character test due to a conviction for sexual intercourse without consent. The dispute before the Tribunal was whether there was "another reason" to revoke the visa cancellation, as contemplated by the Migration Act 1958 (Cth) and guided by Direction No. 90.

The Tribunal was required to determine the weight to be given to various considerations under Direction No. 90, including the protection of the Australian community from serious conduct, the best interests of minor children in Australia, the expectations of the Australian community, the strength, nature and duration of the Applicant's ties to Australia, and the extent of any impediment to removal. Specifically, the Tribunal had to assess the seriousness of the Applicant's conduct, the risk to the community, and whether these factors were outweighed by other considerations.

The Tribunal reasoned that while the Applicant's conduct, a sexual offence committed while intoxicated against a victim whose cognitive faculties were compromised, was serious and viewed gravely by the Australian community, other factors warranted revocation of the visa cancellation. The Tribunal considered the Applicant's significant ties to Australia, including his family, and importantly, the best interests of his minor children and grandchildren residing in Australia. Ultimately, the Tribunal found that these considerations outweighed the factors that weighed against revocation.

Consequently, the Tribunal set aside the reviewable decision and substituted a new decision that there was another reason why the mandatory cancellation of the Applicant's visa should be revoked.