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

This matter concerned an application for review of the mandatory cancellation of the applicant's Class XD Subclass 785 Temporary Protection visa. The visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test due to having a substantial criminal record, stemming from convictions for aggravated sexual intercourse with a person aged between 12 and 14 and indecent assault. The applicant sought revocation of the cancellation decision, arguing for "other reasons" why it should be revoked.

The Tribunal was required to determine whether there were "other reasons" why the original decision to cancel the visa should be revoked, notwithstanding the applicant's failure to pass the character test. This involved considering the primary considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community, the best interests of minor children in Australia, the expectations of the Australian community, and other considerations such as international non-refoulement obligations, impediments to removal, impact on victims, links to the Australian community, and the possibility of indefinite detention.

The Tribunal applied Ministerial Direction No. 90, noting that violent crimes and acts of family violence are viewed very seriously by the Australian government and community. It acknowledged the seriousness of the applicant's offending conduct, which involved sexual intercourse and indecent assault upon a minor. However, the Tribunal also had regard to the applicant's representations, including his links to Australia, his recognition of the seriousness of his conduct, and the prospect of indefinite detention. After weighing these competing considerations, the Tribunal found that the "other reasons" presented by the applicant were sufficient to warrant the revocation of the mandatory cancellation decision.

The Tribunal set aside the original decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's temporary protection visa.