MJVS AND Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate's decision to refuse to revoke the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The Applicant did not pass the character test due to a conviction for possessing child abuse material, for which he was initially sentenced to 12 months imprisonment. The core dispute was whether there was "another reason" to revoke the mandatory cancellation decision, as required by section 501CA of the Migration Act 1958 (Cth), considering Ministerial Direction 99.

The Tribunal was required to determine two issues: first, whether the Applicant passed the character test, and second, if he did not, whether there was another reason to revoke the mandatory cancellation of his visa. The Applicant was found not to pass the character test under section 501(6)(e) of the Act, as he had been convicted of a sexually based offence involving a child. This was despite a subsequent reduction in his head sentence on appeal to nine months, which meant he no longer had a "substantial criminal record" under section 501(7)(c).

In considering whether there was another reason to revoke the cancellation, the Tribunal applied Ministerial Direction 99. The Applicant presented evidence of rehabilitation, including statements detailing his remorse, the significant stress caused by the proceedings, and his engagement with mental health professionals and a psychiatrist specialising in pornography addiction. The Tribunal noted that the Applicant's offending did not fall within the categories of conduct considered "very serious" under paragraph 8.1.1(1)(a) of the Direction. Despite the seriousness of possessing child abuse material, the Tribunal found that the Applicant's low risk of reoffending, strong evidence of rehabilitation, and lack of other criminal convictions constituted another reason to revoke the mandatory cancellation.

The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.