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

This matter concerned an application by Mr. Thompson (the applicant) to revoke the mandatory cancellation of his visa under s 501CA(4) of the *Migration Act 1958* (Cth). The cancellation was based on the applicant failing to pass the character test due to serious violent sexual offences. The applicant sought to demonstrate that there was "another reason" why the cancellation decision should be revoked, as contemplated by the Act. The decision was made by Mrs. J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was another reason to revoke the mandatory visa cancellation, notwithstanding the applicant's failure to pass the character test. This required the Tribunal to consider the non-compellable considerations outlined in Ministerial Direction No. 99, including the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal was also required to consider the legal consequences of the decision and the extent of impediments if the applicant were removed from Australia.

The Tribunal's reasoning focused on the nature and seriousness of the applicant's conduct and the risk to the Australian community. The applicant had pleaded guilty to one count of common assault and eight counts of rape, committed against a sex worker. The sentencing judge noted that the offending occurred over a short period while the applicant was receiving paid services, but detailed the violent nature of the acts, including strangulation, forced penetration, and causing significant pain. The victim impact statement described profound and ongoing psychological distress. The Tribunal acknowledged the applicant had no prior criminal history. Despite the seriousness of the offences, the Tribunal found that there was another reason to revoke the mandatory cancellation of the applicant's visa.

The Tribunal set aside the reviewable decision. The Tribunal made a decision that there was another reason to revoke the mandatory cancellation of the applicant's Partner (Permanent) (Subclass 801) visa.