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

This matter concerned an application by PYYV, a citizen of the Republic of India, for review of the mandatory cancellation of his skilled visa. The visa had been cancelled due to PYYV possessing a substantial criminal record, stemming from sexually based offences involving a child. PYYV had made representations to the Minister's delegate seeking to revoke the cancellation, which were refused. The Administrative Appeals Tribunal was tasked with reviewing this refusal.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory visa cancellation, considering the criteria set out in the Ministerial Direction. This involved weighing various primary considerations, including the protection of the Australian community from criminal or other serious conduct, the strength, nature, and duration of ties to Australia, the expectations of the Australian community, and the legal consequences of the decision. The Tribunal also had to consider the extent of impediments to removal from Australia and the risk of reoffending.

In its reasoning, the Tribunal applied the principles outlined in the new Ministerial Direction, which generally mandates greater weight be given to the primary consideration of protecting the Australian community compared to other primary considerations. While acknowledging that the applicant presented a low risk of reoffending, the Tribunal found that the very serious nature and recklessness of his offending meant that even a low risk was unacceptable. The Tribunal also noted that the Direction, while providing guidance on the weighting of considerations, still leaves the ultimate decision to the individual decision-maker, and that an "other consideration" is not incapable of outweighing a primary consideration. Ultimately, the Tribunal concluded that the discretion to revoke the cancellation was not enlivened, as there was no "another reason" to do so.

The Tribunal decided to affirm the decision of 5 April 2024 not to revoke the mandatory cancellation of the Applicant’s visa.