Lu and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Lu and the Minister for Home Affairs concerning the mandatory cancellation of the applicant's visa. The applicant, a 59-year-old Chinese citizen, had his visa mandatorily cancelled due to having a substantial criminal record. The central dispute before the Tribunal was whether the discretion to revoke this mandatory cancellation should be exercised in favour of the applicant.

The legal issues before the Tribunal were to determine the primary considerations relevant to the exercise of discretion in revoking a mandatory visa cancellation, specifically focusing on the protection of the Australian community. This involved assessing the nature and seriousness of the applicant's conduct, including the principles that violent and sexual crimes, particularly against women, are viewed very seriously, and the risk to the Australian community should the applicant commit further offences. The Tribunal was also required to consider other relevant factors presented by the applicant.

The Tribunal's reasoning was guided by Direction 99, which outlines the framework for considering such matters. It noted that remaining in Australia is a privilege for non-citizens, contingent on being law-abiding. The Tribunal detailed the applicant's criminal conduct, which involved sexual offences against two young women during massage appointments, including rape and indecent assault. The Tribunal found these offences to be grave, noting the violation of unsuspecting women and the applicant's untruthful responses during the investigation. Applying the principles that violent and sexual crimes against women are viewed very seriously, and considering the cumulative effect of the offending, the Tribunal concluded that the protection of the Australian community was paramount.

Consequently, the Tribunal decided not to exercise its discretion to revoke the mandatory cancellation of the applicant's visa. The decision under review, which affirmed the cancellation, was therefore affirmed by the Tribunal.