NRFX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, NRFX, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his Class BB Subclass 155 – Five Year Resident Return visa. The cancellation was based on NRFX failing to pass the character test due to certain offending conduct. The matter was heard by Rebecca Bellamy M.

The primary legal issue before the court was whether there was "another reason" to revoke the mandatory cancellation of NRFX's visa, as contemplated by the Migration Act 1958 (Cth). This required the court to consider the relevant Ministerial Direction, specifically Ministerial Direction No. 90, which outlines the considerations for such a decision, including the protection of the Australian community and the best interests of any minor children involved.

The court reasoned that while the applicant's offending conduct, involving sexual touching of a minor, was serious and fell within the category of crimes against children, several factors weighed in favour of revoking the cancellation. These included the isolated nature of the offending, the applicant's limited intellectual ability, diagnosed communication disorder and social anxiety disorder, which impacted his confidence and competence in social situations, and the fact that he had no prior criminal record. Crucially, the court gave significant weight to the best interests of the applicant's teenage daughter, Child A, who relied on him for care and support, and for whom he was the primary caregiver. The court found that the risk of re-offending was exceptionally low, particularly given the applicant's personal circumstances and the lack of any prior history of such behaviour.

Consequently, the Tribunal set aside the delegate's decision and exercised its discretion under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa.