Sheik and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Sheik for the revocation of the mandatory cancellation of his visa. Mr Sheik’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) as he had been sentenced to a term of imprisonment exceeding 12 months for sexual offences. The Administrative Appeals Tribunal was required to determine whether there was "any other reason" why the original decision to cancel his visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Act.

The Tribunal was tasked with considering the factors for and against revoking the visa cancellation, in accordance with Ministerial Direction No. 79. This Direction requires decision-makers to consider the protection of the Australian community, the nature and seriousness of the non-citizen's conduct, and the risk of further offending. It also specifically directs that crimes of a violent nature against women or children are viewed very seriously. The Tribunal had before it evidence of Mr Sheik's convictions for rape and indecent assault, as well as a conviction for wilful and obscene exposure. The victim impact statement from the rape conviction detailed significant and lasting harm to the victim.

The Tribunal considered Mr Sheik's participation in a sexual offender treatment program as a factor in his favour. However, it weighed this against the serious nature of his offending, particularly the rape conviction where the victim did not consent and suffered profound psychological and physical harm. The Tribunal noted that the wilful and obscene exposure offence occurred in a public gym, and Mr Sheik's explanation for his conduct was found to be improbable. Ultimately, the Tribunal found that the seriousness of the offending, particularly the rape, and the risk to the Australian community outweighed the mitigating factors.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of Mr Sheik's visa.