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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the Applicant's visa under section 501(2) of the Migration Act 1958 (Cth). The Applicant did not dispute that he failed to satisfy the character test due to his criminal record, which included convictions for child sexual offending, traffic offences, and general offending. The central issue before the Tribunal was whether it should exercise its discretion to set aside the visa cancellation decision.

The Tribunal was required to determine whether the Applicant's circumstances warranted the exercise of discretion to revoke the mandatory visa cancellation. This involved considering the primary and other considerations outlined in Direction No. 79, which guides decision-makers in such matters. The primary considerations included the protection of the Australian community, the nature and seriousness of the Applicant's conduct, and the risk to the community. Other considerations included the strength, nature, and duration of the Applicant's ties to Australia and the impediments to his removal to the United Kingdom.

The Tribunal reasoned that the Applicant's offending history, particularly the child sexual offending, was viewed very seriously under Direction No. 79. It noted that crimes against children are considered particularly serious, regardless of the sentence imposed. The Tribunal also considered the Respondent's submission that the Australian community would expect the Applicant's visa to remain cancelled given the nature of his offending. While acknowledging the Applicant's arguments regarding his long residence in Australia, his good conduct since completing his prison sentence, and his health issues, the Tribunal found that these considerations were outweighed by the primary considerations relating to community protection and the seriousness of his criminal conduct.

Ultimately, the Tribunal was not satisfied that it should exercise its discretion to set aside the visa cancellation decision. The Tribunal affirmed the decision to cancel the Applicant's visa.