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

This matter concerned an application for review of a decision to cancel the applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth). The applicant had a substantial criminal record and did not pass the character test. The applicant sought revocation of the visa cancellation under section 501CA(4) of the Act, arguing there was another reason why the cancellation should be revoked. The decision was made by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the applicant's visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act*. In determining this, the Tribunal was required to consider the relevant considerations outlined in Direction No. 90, including the primary consideration of protecting the Australian community from criminal or other serious conduct. This involved assessing the nature and seriousness of the applicant's conduct and the risk to the Australian community should further offences be committed.

The Tribunal considered the applicant's criminal offending, which involved the possession of child exploitation material. The sentencing judge had described the material as particularly disturbing, including images and movies depicting penetrative sexual intercourse with pre-pubescent girls, many of whom appeared to be infants, and other degrading activities. The Tribunal noted that this offending could not be described as a victimless crime. After considering the applicant's criminal history and background, and applying the principles in Direction No. 90, the Tribunal concluded that there was not another reason why the decision to cancel the applicant's visa should be revoked.

Consequently, the Tribunal affirmed the reviewable decision made on 26 May 2022 to cancel the applicant's visa.