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

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of QJMV, a citizen of Afghanistan who had previously been granted a Protection Visa. QJMV arrived in Australia approximately ten years prior as an irregular maritime arrival and was granted his Protection Visa in December 2017. In late 2015, QJMV was found guilty of two charges of 'Indecent act with child under 16', relating to an incident in January 2015. The court dealt with this matter without conviction, imposing an 18-month Community Corrections Order. QJMV was subsequently convicted in April 2017 for contravening this order and failing to comply with reporting obligations, for which he received a fine. His visa was cancelled on character grounds on 17 February 2020, and he was subsequently taken into immigration detention.

The Tribunal was required to determine whether the Minister's discretion to cancel QJMV's visa under section 501(2) of the Migration Act 1958 (Cth) should be exercised. This involved assessing whether QJMV passed the character test, particularly in light of his past offending. The Tribunal considered the seriousness of QJMV's offending, the risk of future harm to the Australian community, and evidence of rehabilitation. It also had regard to QJMV's international non-refoulement obligations, the strength and duration of his ties to Australia, and the impediments he would face if removed from Australia.

The Tribunal reasoned that while QJMV's offending was objectively serious, the risk of future harm to the Australian community was not so high as to warrant visa cancellation. It noted that QJMV had not re-offended in the five years since his conviction and had complied with the law by surrendering to detention after his visa was cancelled. The Tribunal also considered QJMV's abstention from alcohol and his engagement with psychological counselling while on the Community Corrections Order as evidence of rehabilitation. Furthermore, the Tribunal found that QJMV's international non-refoulement obligations, his ties to Australia, and the impediments to his removal weighed moderately against cancellation. These factors, when considered cumulatively, outweighed the considerations favouring cancellation, namely the protection of the Australian community and the expectations of the Australian community.

Consequently, the Tribunal set aside the decision to cancel QJMV's visa and substituted a decision that the discretion under section 501(2) of the Act to cancel his visa was not exercised.