SKWF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the non-revocation of a mandatory cancellation of the Applicant's Class XB Subclass 202 Global Special Humanitarian visa. The Applicant did not pass the character test due to serious offending. The central dispute revolved around whether the mandatory cancellation of the visa should be revoked, a decision guided by Ministerial Direction No. 90.

The AAT was required to determine the weight to be given to various considerations under Ministerial Direction No. 90, particularly the primary consideration of protecting the Australian community from harm. This involved assessing the nature and seriousness of the Applicant's conduct, including his conviction for sexual offences against a child, and the risk to the community should he re-offend. The Tribunal also had to consider other relevant factors, such as the Applicant's insight into his offending, character references, and potential for rehabilitation.

The Tribunal reasoned that while the Applicant had shown some insight into his offending and received positive character references, his serious criminal conduct, specifically sexual offences against a child, weighed heavily against revocation. The Tribunal applied paragraph 8.1.1(1) of Ministerial Direction No. 90, which mandates that violent and/or sexual crimes are viewed very seriously. Despite the Applicant's expressed remorse and the possibility of re-engagement by a former employer, the Tribunal found that the protection of the Australian community was paramount and that the seriousness of the offending outweighed other considerations.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal concluded that it could not exercise the discretion to revoke the cancellation, finding that the mandatory cancellation should stand.