WSYT and Minister for Home Affairs (Migration)

This matter concerned an appeal by the Applicant against the refusal of the Tribunal to revoke the mandatory cancellation of his visa. The Applicant, a citizen of New Zealand, had his visa cancelled under s 501(3A) of the *Migration Act 1958* (Cth) after being convicted of four counts of unlawfully and indecently dealing with a girl under 13 years, for which he received a sentence of imprisonment. The Applicant also had prior convictions in New Zealand for a sexual offence involving a child and several driving offences in Australia. The Applicant sought revocation of the cancellation, arguing, among other things, the best interests of his great-grandchildren in Australia, his remorse and rehabilitation, his lengthy ties to Australia, and the hardship he would suffer if removed.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the Applicant's visa should be revoked, pursuant to s 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the factors outlined in Ministerial Direction 79, which provides a framework for assessing whether a non-citizen poses an unacceptable risk to the Australian community. The Tribunal was required to weigh considerations such as the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk of re-offending, the best interests of minor children in Australia, community expectations, the strength and duration of ties to Australia, the impact on victims, and the impediments to removal.

The Tribunal's reasoning focused on the Applicant's denial of his offending behaviour, including his convictions for historical sexual offences against his daughter and step-daughter. Despite having previously made statements accepting responsibility and expressing remorse to parole boards and the Department of Corrective Services, the Applicant recanted these statements at the hearing, claiming they were false. The Tribunal found this denial inherently improbable, particularly given the Applicant's previous false statement on his incoming passenger card regarding his criminal convictions. The Tribunal concluded that the Applicant had not demonstrated genuine remorse or a commitment to rehabilitation, and that his conduct posed a risk to the Australian community.

The Tribunal ultimately set aside the delegate's decision and substituted its own decision, revoking the mandatory cancellation of the Applicant's visa. The Tribunal found that, despite the seriousness of the Applicant's offending, there were other reasons why the cancellation decision should be revoked. These reasons included the Applicant's significant ties to Australia, the best interests of his minor great-grandchildren, and the fact that the risk of re-offending was not an unacceptable one.