TGXY and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of TGXY (the applicant) and the Minister for Home Affairs (Migration). The dispute concerned the mandatory cancellation of the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth) due to the applicant failing to pass the character test. The applicant sought a review of the decision to refuse to revoke the visa cancellation.

The primary legal issue before the Tribunal was whether there was "another reason" why the cancellation decision should be revoked, as contemplated by section 501(3A)(b) of the Act. This required the Tribunal to assess the applicant's character, the risk to the Australian community, and the expectations of the Australian community, in accordance with Direction No. 65. The Tribunal also had to determine if the applicant passed the character test, which involved examining whether the applicant had a substantial criminal record, defined by sentences of imprisonment of 12 months or more.

The Tribunal found that the applicant did not pass the character test, having been sentenced to terms of imprisonment exceeding 12 months for multiple sexual assault offences committed against a child. The Tribunal carefully considered the nature and seriousness of the applicant's conduct, noting the principles that violent and sexual crimes, particularly against children, are viewed very seriously. The Tribunal detailed the disturbing nature of the offending as described by the sentencing judge. Despite the applicant's submission of character references, the Tribunal was unable to obtain evidence from these referees. Applying the principles of Direction No. 65, the Tribunal concluded that the protection of the Australian community from criminal or other serious conduct weighed heavily against revoking the visa cancellation.

Consequently, the Tribunal affirmed the delegate's decision to refuse to revoke the cancellation of the applicant's visa.