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

This matter concerned an application by the Applicant, a New Zealand citizen, to revoke the mandatory cancellation of his Special Category (Class TY) (subclass 444) visa. The visa cancellation was based on the Applicant failing to pass the character test due to a substantial criminal record, specifically a conviction for indecently dealing with a child under the age of 13 years. The Applicant sought to have this cancellation revoked under section 501CA(4) of the Migration Act 1958 (Cth). The decision was made by Senior Member Hon J Rau SC of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked. In making this determination, the Tribunal was bound to comply with Ministerial Direction No. 110, which outlines the principles and considerations to be applied when assessing character concerns and deciding whether to revoke a mandatory visa cancellation. Key issues included the nature and seriousness of the Applicant's offending, the risk to the Australian community, and any countervailing factors that might justify revocation.

The Tribunal reasoned that the Applicant's conviction for indecently dealing with a child, an offence involving a serious breach of trust against a young victim, was of significant gravity. Despite the Applicant maintaining his innocence and showing no remorse, the Tribunal was bound by the jury's findings. Ministerial Direction No. 110 prioritises the safety of the Australian community and states that entering or remaining in Australia is a privilege. While acknowledging the Applicant's long-term presence in Australia and his Australian citizen partner and daughters, the Tribunal found that the seriousness of the offending conduct outweighed these considerations. The Tribunal noted the lack of direct evidence from the Applicant's partner regarding the impact on his daughters and the prospect of relocation.

The Tribunal affirmed the mandatory cancellation of the Applicant's visa, finding that there was no other reason why the original decision should be revoked. The Applicant's conviction for a serious sexual offence against a child was considered so grave that it outweighed any mitigating factors presented.