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

This matter concerned an application for review of a decision by the Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 30-year-old Sudanese national who arrived in Australia at age 14, had his visa cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test, having been sentenced to a term of imprisonment of four years and seven months for sexual penetration without consent. The applicant sought revocation of this decision under section 501CA of the Migration Act.

The Tribunal was required to determine whether there was "another reason" why the visa cancellation decision should be revoked, having regard to the primary and other considerations set out in Direction No. 99. The applicant contended that such a reason existed due to his strong ties to Australia, the best interests of his two Australian-born minor children, potential harm if returned to Sudan, and his assertion that he was no longer a danger to the Australian community. The respondent argued that these considerations were outweighed by factors weighing heavily against revocation, specifically the protection of the Australian community, the nature and seriousness of the applicant's offending, and the expectations of the Australian community.

The Tribunal considered the nature and seriousness of the applicant's criminal offending, noting that sexual crimes against persons are viewed very seriously by the Australian Government and community. It also considered the risk to the Australian community should the applicant commit further offences. While acknowledging the applicant's ties to Australia, his children, and the potential impediments to his return to Sudan, the Tribunal found that these factors did not constitute "another reason" to revoke the cancellation decision. The Tribunal concluded that the primary considerations, particularly the protection of the Australian community and the seriousness of the offending, weighed heavily against revocation and outweighed any considerations favouring it.

Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.