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

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category visa. The Applicant, a New Zealand citizen, had been convicted of three indecent treatment offences involving his stepdaughter, who was between 10 and 12 years old at the time of the offending. The Applicant had been sentenced to a term of imprisonment of 12 months, which resulted in him not passing the character test under the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal was required to determine whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked.

The primary legal issue before the Tribunal was whether, despite the Applicant not passing the character test due to his substantial criminal record, there was another compelling reason to revoke the mandatory cancellation of his visa. In making this determination, the Tribunal was bound to consider Ministerial Direction No 79, which outlines the factors to be taken into account when assessing whether to revoke a visa cancellation. This Direction requires decision-makers to give primary consideration to the protection of the Australian community from criminal or other serious conduct.

The Tribunal's reasoning focused on the nature and seriousness of the Applicant's conduct, as well as the risk to the Australian community. It noted that the Applicant's offences, which included indecently treating a child and peering at her naked through a window, were sexual in nature and involved a vulnerable victim. The Tribunal applied the principles within Direction No 79, which stipulate that sexual crimes, particularly those against children, are viewed very seriously. Despite acknowledging the Applicant's employment history and volunteer work in Australia, the Tribunal found that these factors did not outweigh the seriousness of his offending and the need to protect the community. Consequently, the Tribunal concluded that there was no other reason to revoke the mandatory cancellation of the Applicant's visa.

The Tribunal affirmed the decision of the Minister's delegate to refuse to revoke the mandatory cancellation of the Applicant's visa.