MKBL and Minister for Home Affairs (Migration)

This matter concerned an application for review by MKBL (the Applicant) of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of his visa. The Applicant had failed to pass the character test due to a substantial criminal record, specifically for using a carriage service to transmit indecent communications to a person under 16 and grooming a person under 16. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation decision, considering the primary and other considerations outlined in Direction No 79.

The Tribunal's reasoning focused on the application of Direction No 79, particularly concerning the strength, nature, and duration of the Applicant's ties to Australia. The Applicant, aged 36, had resided in Australia for approximately 23 years, having arrived at age 13. He had spent his formative teenage years and entire working life in Australia, attending high school and not committing offences until approximately nine years after his arrival. The Tribunal also considered the Applicant's close family ties in Australia, including his parents, siblings, and extended family, noting evidence of strong familial relationships and the impact of non-revocation on his immediate family. The Tribunal found that paragraph 14.1 of Direction No 79, relating to non-refoulement, was not applicable as no such issues were raised by the material before it.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. While acknowledging the Applicant's significant ties to Australia and the impact on his family, the Tribunal ultimately found that these factors did not outweigh the seriousness of his offending and the need to protect the Australian community. The Tribunal concluded that there was no other reason to revoke the mandatory cancellation decision.