Varley and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of the Applicant's visa. The Applicant had been convicted of multiple offences, including intent to procure a person believed to be under 16 years for sexual activity and intent to expose a person believed to be under 16 to indecent matter, and had placed an advertisement for 'young teens' on a website. The delegate's decision was based on the Applicant failing the character test due to a substantial criminal record.

The Tribunal was required to determine whether the Applicant passed the character test as defined by section 501(6) of the Migration Act. If the Applicant did not pass the character test, the Tribunal had to decide 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. These considerations included the protection of the Australian community, the nature and seriousness of the criminal offending, the risk to the Australian community, the expectations of the Australian community, the strength, nature, and duration of the Applicant's ties to Australia, and the extent of impediments if returned to the United Kingdom.

In its reasoning, the Tribunal considered the primary consideration of the expectations of the Australian community, as articulated in Direction No. 79 and interpreted in case law such as *YNQY v Minister for Immigration and Border Protection*. The Tribunal noted that this consideration is generally adverse to an applicant who has failed the character test and been convicted of serious crimes, reflecting a view that the Australian community expects non-citizens who commit serious offences not to hold a visa. The Tribunal also noted that the Applicant had no children or step-children, rendering that particular primary consideration inapplicable.

The Tribunal affirmed the delegate's decision not to revoke the mandatory visa cancellation. The Applicant failed to satisfy the Tribunal that there was another reason to revoke the cancellation, given the seriousness of his offending and the relevant considerations under Direction No. 79.