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

This matter concerned the review of a decision to cancel the visa of the applicant, Mr Rosakuwai, under subsection 501(3A) of the *Migration Act 1958* (Cth). The cancellation was based on the applicant having a substantial criminal record and failing to pass the character test due to a conviction for sexual intercourse without consent. The applicant sought revocation of this cancellation under subsection 501CA(4) of the Act, arguing there was another reason why the cancellation should be revoked. The decision was made by Mr S Evans, Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether there was another reason why the visa cancellation should be revoked, considering the mandatory considerations outlined in Direction No. 90. This involved assessing the protection of the Australian community from criminal or other serious conduct, and the best interests of the applicant's three minor children. The Tribunal was required to weigh these considerations against the applicant's criminal history and the seriousness of his offending.

The Tribunal considered evidence regarding the applicant's criminal history, his remorse, his efforts at rehabilitation through completing courses in prison, and his strong ties to the Australian community through his family and his role as a father. While acknowledging the seriousness of the offending and the risk to the community, the Tribunal found that the applicant's remorse, his completed rehabilitation programs, and his demonstrated commitment to his children weighed significantly in favour of revoking the cancellation. The Tribunal was satisfied that the applicant's absence from his children's lives would be detrimental and that their best interests were a crucial factor.

Ultimately, the Tribunal set aside the decision under review and substituted it with a decision to revoke the mandatory visa cancellation. The Tribunal was satisfied that the best interests of the applicant's minor children were a compelling reason to revoke the cancellation, and that the applicant's rehabilitation efforts and remorse, despite some lingering concerns about his insight into the full impact of his offending, meant that revocation was appropriate.