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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant's visa was initially cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) due to failing the character test, stemming from a conviction for serious sexual offences and recording an intimate image without consent, for which he received an aggregate sentence of three years imprisonment with a non-parole period of two years. Following legislative changes that retrospectively validated the initial cancellation, the delegate considered representations for revocation under subsection 501CA(4) but decided against it. The applicant then sought review of this decision by the Tribunal.

The Tribunal was required to determine whether there was "another reason" why the original visa cancellation decision should be revoked, as contemplated by subsection 501CA(4)(b)(ii) of the *Migration Act*. This involved assessing various considerations, including the nature and seriousness of the applicant's offending, the strength, nature, and duration of his ties to Australia, the expectations of the Australian community, and the extent of impediments he would face if removed from Australia. The Tribunal also had to consider Ministerial Direction No. 99, which outlines the primary and other considerations relevant to such decisions.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's sexual offences, describing them as "callous and cruel." However, it also gave significant weight to the applicant's substantial ties to Australia, noting he had resided in the country since the age of ten and was now 24, having spent his formative years there. This lengthy period of residence, coupled with strong social links to his family, entitled him to a "higher level of tolerance" for criminal conduct as outlined in Ministerial Direction No. 99. The Tribunal also considered the impact of his removal on his 13-year-old sister, though this was given less weight. Despite the community's expectation that individuals who commit serious crimes should not remain in Australia, the Tribunal found that the applicant's long-standing ties and formative years spent in Australia constituted "another reason" to revoke the cancellation.

The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.