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

This matter concerned an application for review of a decision to mandatorily cancel the visa of STKN, a national of a country in Africa, who had failed to pass the character test. The applicant contended that there was another reason why the mandatory cancellation should be revoked. The decision was made by Dr Stewart Fenwick, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, applying Ministerial Direction No. 90. This involved considering the primary considerations of protection of the Australian community and family violence committed by the non-citizen, as well as the nature and seriousness of STKN's conduct. The Tribunal also had to assess the risk of reoffending and the extent of rehabilitation.

The Tribunal reasoned that while the factors in Ministerial Direction No. 90 must be taken into account, they do not limit the scope of inquiry. The Tribunal found that STKN's offending, which included very serious sexual offending against an immediate family member who was a minor, and other serious criminal offending such as home invasion, weighed heavily against revocation. Despite evidence of remorse, participation in victim conferences, and positive reports from accommodation staff, the Tribunal considered there to be at least some limited risk of reoffending, including in a similar way. The Tribunal noted that while the specific circumstances of the sexual offending might not be repeated, the seriousness of that offending remained a significant concern. The Tribunal also considered STKN's offending to constitute family violence, which is a matter of serious concern for the Government.

On balance, the Tribunal found that the primary considerations weighed heavily against revocation. The Tribunal concluded that STKN's offending should be viewed as very serious and that there was some risk of reoffending, which carried a serious risk of harm to individuals or the Australian community. Accordingly, the Tribunal affirmed the decision to cancel STKN's visa.