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

This matter concerned an application for review of a mandatory cancellation of the Applicant's Five Year Resident Return (Subclass 155) visa. The Applicant accepted that he did not pass the character test due to a substantial criminal record, and the dispute before the Tribunal was whether there was another reason to revoke the mandatory cancellation decision. The decision was made by Mr A. Maryniak KC, Member.

The Tribunal was required to determine whether to exercise its discretion under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the visa cancellation. This involved considering the Applicant's representations and evaluating whether there was another reason to revoke the cancellation, specifically by reference to the primary considerations of protecting the Australian community and the nature and seriousness of the Applicant's conduct to date, as well as the risk of future harm.

The Tribunal found the Applicant's conduct, which involved sexual crimes against a vulnerable minor, to be very serious, particularly given the lengthy custodial sentence imposed. It noted the power imbalance between the Applicant and the victim, and the potential for significant psychological and physical harm. While acknowledging the Applicant's difficult childhood and the psychological reports presented, the Tribunal concluded that, on balance, the considerations weighed against revocation and outweighed any factors favouring it.

Consequently, the Tribunal affirmed the decision to cancel the Applicant's visa.