XBYC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by XBYC (the applicant) to the Administrative Appeals Tribunal for a review of a delegate's decision not to revoke the mandatory cancellation of his protection visa. The visa had been cancelled under section 501 of the *Migration Act 1958* (Cth) due to the applicant's conviction for a serious criminal offence and a sentence of imprisonment exceeding 12 months. The Tribunal was required to determine whether to affirm or set aside the delegate's decision and substitute its own decision on the merits.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's protection visa should be revoked. This involved considering the nature and seriousness of the applicant's criminal conduct, which included aggravated sexual assault, against the primary considerations relevant to visa cancellation, such as the protection of the Australian community and community expectations. The Tribunal also had to consider other relevant factors, including the applicant's international non-refoulement obligations.

The Tribunal reasoned that while the applicant's conduct, particularly the aggravated sexual assault of a vulnerable young woman, was serious and warranted significant concern, a holistic assessment of all relevant factors led to the conclusion that revocation of the visa cancellation was the preferable outcome. The Tribunal noted the applicant's background, his initial grant of a protection visa due to persecution in Sri Lanka, and the fact that he had resided and worked in Australia since 2013. Ultimately, the Tribunal decided to set aside the delegate's decision and substitute a new decision revoking the cancellation of the applicant's visa.