Rodriguez Torrez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Mr. Rodriguez Torrez (the Applicant) to set aside the mandatory cancellation of his Class XB Subclass 201 In-country Special Humanitarian visa. The cancellation was based on the Applicant failing to pass the character test due to a substantial criminal record, specifically a conviction for sexually penetrating a child. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The decision was made by Senior Member Hon J Rau SC of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked under section 501CA(4) of the Migration Act 1958 (Cth). This required the Tribunal to consider the Applicant's character, the risk he might pose to the Australian community, and to apply the principles and considerations outlined in Ministerial Direction No. 110.

The Tribunal reasoned that the Applicant's conviction for a serious sexual offence against a child was a significant factor that weighed heavily against revoking the cancellation. It noted that such offences are viewed very seriously by the Australian Government and community, as stipulated in the Direction. The Tribunal found the Applicant's claims of not reoffending to carry little weight, particularly in light of his overall lack of credibility regarding his past. The Tribunal also considered the principle that entering or remaining in Australia is a privilege, and the safety of the Australian community is the highest priority. It concluded that there was no "protection finding" that would justify revoking the cancellation.

The Tribunal affirmed the decision to cancel the Applicant's visa, finding no other reason why the original decision should be revoked.