MNLR and Minister for Home Affairs (Migration)

The applicant, MNLR, sought to have the mandatory cancellation of his Global Special Humanitarian visa revoked. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test, having been sentenced to 12 months imprisonment. The matter was heard by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa should be exercised. This required the Tribunal to consider the relevant Ministerial Directions, specifically Direction No 65 and Direction No 75, which outline the factors to be taken into account when making such a decision, with a particular focus on the protection of the Australian community from criminal or other serious conduct.

The Tribunal's reasoning centred on the serious nature of the applicant's offending conduct, which involved a sexual offence. Crucially, the Tribunal found that the applicant demonstrated a significant lack of insight into his offending. This was evidenced by his inconsistent statements regarding his culpability, including his assertion to an expert that he was convicted for something he never did and that the alleged victim consented, despite a jury finding him guilty and his appeals being unsuccessful. The Tribunal considered that violent and sexual crimes are viewed very seriously, and the applicant's apparent failure to comprehend the cultural differences relevant to interpersonal relationships with women, coupled with the gravity of his conviction, weighed heavily against the exercise of discretion.

Consequently, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review, which affirmed the mandatory cancellation, was therefore affirmed.