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

This matter concerned the review of a decision to cancel the visa of WMDG, a citizen of Samoa and New Zealand, who held a Class TY Subclass 444 Special Category (Temporary) visa. The visa had been cancelled under section 501(2) of the *Migration Act 1958* (Cth) on the grounds that WMDG failed to pass the character test due to serious offending. The decision was heard by D. J. Morris SM.

The primary legal issue before the Tribunal was whether the discretion to cancel WMDG's visa under section 501(2) of the *Migration Act* should be exercised, considering the relevant considerations outlined in Ministerial Direction No. 90. This involved assessing the protection of the Australian community, the best interests of any minor children in Australia, the expectations of the Australian community, the impediments to WMDG's removal to New Zealand, and his links to the Australian community. A key aspect of this assessment was the nature and seriousness of WMDG's conduct, including his convictions for sexual offending against a child and other related offences, as well as prior driving offences and a breach of bail undertaking.

The Tribunal reasoned that while WMDG's offending, particularly the sexual assault of a child, was very serious, and the other offences involving children were reprehensible, significant mitigating factors had emerged. These included extensive measures put in place by a Magistrate, such as WMDG ceasing alcohol and cannabis use, securing accommodation and employment, and demonstrating an understanding of acceptable behaviour boundaries, reinforced by a Safety Plan and registration as a sex offender for over a decade. The Tribunal also considered WMDG's significant intellectual deficit and its potential impact if he were deported. Weighing these factors, the Tribunal concluded that the discretion not to cancel the visa should be exercised.

Consequently, the Tribunal set aside the decision to cancel WMDG's visa and substituted a decision that the visa would not be cancelled.