Stacey and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant had a substantial criminal record, including child sex offences, and sought revocation of the visa cancellation. The Tribunal's jurisdiction arose under s 500(1)(ba) of the Migration Act 1958 (Cth), allowing review of decisions under s 501CA(4) not to revoke a mandatory visa cancellation.

The Tribunal was required to determine whether the Applicant passed the character test as defined by s 501(6) of the Migration Act, and if not, whether there was another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations outlined in Direction no. 79. This Direction mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of criminal offending, the risk of re-offending, the best interests of minor children, community expectations, ties to Australia, and impediments to return to the United Kingdom.

The Tribunal reasoned that while the likelihood of the Applicant re-offending might be lower than previously assessed, there was no objective psychological assessment to quantify this reduction. The Tribunal found the risk to be likely high to moderate. Crucially, given the nature of the Applicant's child sex offences and the serious harm they cause, even a moderate or low likelihood of re-offending was deemed unacceptable, weighing strongly against revocation. The Tribunal also considered the best interests of the Applicant's minor grandson, examining the relationship's nature and duration, the Applicant's likely future parental role, the impact of his conduct on the child, and the potential effect of separation.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal concluded that the risk of re-offending, particularly in light of the serious nature of the child sex offences, was too significant to permit revocation, and this consideration outweighed other factors, including the best interests of the Applicant's grandson.