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

This matter concerned the review of a mandatory visa cancellation under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, QBQS, had his visa cancelled because he did not pass the character test due to serious criminal convictions. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The Administrative Appeals Tribunal (AAT) was required to determine whether there was ‘another reason’ to revoke the cancellation, considering the criteria set out in Direction No. 90.

The Tribunal was tasked with assessing several legal issues, including the weight to be given to the protection of the Australian community, the expectations of the Australian community, the applicant's international non-refoulement obligations, and the applicant's links to the Australian community. Specifically, the Tribunal had to consider the nature and seriousness of the applicant's conduct, the risk of re-offending, the strength and duration of his ties to Australia, and the impact of his removal. The applicant's personal circumstances, including his history of trauma and mental health issues, were also relevant considerations.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's convictions for sexual offences against a child and for taking/detaining a person to obtain advantage. It noted that the sentencing judge had described the offending as mid-range in objective seriousness and had taken into account the applicant's mental health issues. The Tribunal also considered the applicant's lengthy period in detention and the prospect of indefinite detention, which it found weighed heavily in favour of revocation. Despite the primary considerations weighing against the applicant, the Tribunal concluded, somewhat reluctantly, that the balance of factors favoured revocation, particularly given the applicant had served his sentence and the prospect of indefinite detention. The Tribunal found that the matter was complex and ideally belonged within the criminal justice and mental health systems.

Ultimately, the Tribunal decided to set aside the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. In substitution, the Tribunal revoked the mandatory cancellation of the applicant's visa, noting the strong support from his brother and the severe consequences of any future offending.