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

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's Class XE Subclass 790 Safe Haven Enterprise Visa. The Applicant had engaged in a sexual offence against a child, and a protection finding had been made in his favour, meaning he could not be returned to his country of origin. The review was heard by Mr Rob Reitano, Member.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation, considering the Applicant's criminal conduct and the protection finding. This required the Tribunal to weigh various factors, including the protection of the Australian community, the strength, nature, and duration of the Applicant's ties to Australia, and the expectations of the Australian community regarding non-citizens who commit serious offences. The Tribunal also had to consider the legal consequences of its decision, particularly the prospect of indefinite immigration detention for the Applicant.

The Tribunal reasoned that while the protection of the Australian community weighed against revocation due to the serious nature of the offence against a child, and the community's expectation that such conduct would lead to visa cancellation, other factors favoured revocation. The Applicant had resided in Australia for approximately 10 years and had one significant familial tie to the Australian community in his sister, an Australian permanent resident. However, his capacity to participate in the community was significantly affected by mental illness and physical disability stemming from past torture. The Tribunal noted that the immediate consequence of refusing to revoke the cancellation would be indefinite detention, a significant deprivation of liberty that is a fundamental human right.

Ultimately, the Tribunal set aside the decision under review. While acknowledging the seriousness of the Applicant's conduct and the community's expectations, the Tribunal found that the prospect of indefinite detention, coupled with the Applicant's limited ties to Australia and his vulnerability due to mental and physical health issues, constituted "another reason" to revoke the visa cancellation.