PQSM and Minister for Home Affairs (Migration)

This matter concerned the review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). The applicant, a national of Mozambique who had resided in Australia since 1995, had his visa mandatorily cancelled under section 501(3A) of the Act following convictions for serious criminal offences, including sexual penetration without consent involving a 14-year-old victim, for which he received a six-year prison sentence. The applicant sought revocation of this cancellation, arguing there was "another reason" why it should be revoked.

The core legal issue before the Tribunal was whether there existed an "other reason" within the meaning of section 501CA(4)(b)(ii) of the Act that warranted the revocation of the mandatory visa cancellation. This required the Tribunal to consider the primary and other considerations outlined in Ministerial Direction No. 79, which governs decisions on visa refusal and cancellation, and the revocation of mandatory cancellations. Specifically, the Tribunal had to weigh factors such as the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community against other considerations, including the applicant's ties to Australia and any impediments to his removal.

The Tribunal's reasoning focused on the application of Direction 79, particularly paragraph 13(2), which identifies the protection of the Australian community, the best interests of minor children, and community expectations as primary considerations. The Tribunal noted that the applicant's conviction for a serious sexual offence involving a child was a grave matter, and that the principle of protecting the Australian community from harm by non-citizens was paramount. While acknowledging the applicant's extensive period of residence in Australia, the Tribunal found that the seriousness of his criminal conduct, particularly the sexual offence against a child, weighed heavily against revocation. The Tribunal concluded that the primary considerations, especially the protection of the community, were not outweighed by any other considerations presented by the applicant, and therefore affirmed the decision not to revoke the visa cancellation.