MMKD and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's visa under section 501(3A) of the Migration Act 1958 (Cth). The Applicant had failed to pass the character test due to convictions for two counts of "indecent assault person under age 16 years of age," involving his adopted daughter. The central dispute was whether there was "another reason" to revoke the mandatory cancellation, considering the criteria outlined in Direction 79.

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation. In assessing "another reason," the Tribunal had to consider the factors set out in Direction 79, including the primary considerations of protecting the Australian community from criminal or other serious conduct and the expectations of the Australian community. The Tribunal also had to consider other considerations, such as the strength, nature, and duration of the Applicant's ties to Australia, the extent of impediments if removed, and the best interests of any relevant minor children.

The Tribunal found that the Applicant did not pass the character test due to his convictions for serious sexual offences against a child. In applying Direction 79, the Tribunal determined that the primary considerations weighed significantly against revocation. This was due to the extreme seriousness of the Applicant's sexual offending against his adopted daughter, the potential harm to children in the Australian community if such conduct were repeated, and a perceived risk of reoffending. The Tribunal also found that the Australian community would expect the cancellation not to be revoked, despite the Applicant's long ties to Australia and strong family connections. While the strength of ties to Australia, impediments to removal, and the best interests of overseas minor children were found to weigh in favour of revocation, these were outweighed by the gravity of the offending and the protection of the Australian community.

Ultimately, the Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa. The Tribunal concluded that, after considering all relevant factors, there was no other reason to revoke the cancellation decision, given the significant weight placed on the protection of the Australian community from serious criminal conduct.