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

This matter concerned the mandatory cancellation of XLFM's Class AH Subclass 101 Child visa following serious criminal offending, specifically attempted sexual intercourse without consent and robbery armed with an offensive weapon. The applicant, a citizen of Kenya, failed the character test, leading to the cancellation of his visa. The review before the Member of the Tribunal concerned whether there was "another reason" to revoke this cancellation, applying Direction no. 90.

The Tribunal was required to determine whether, in light of the serious criminal conduct, the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, the strength, nature and duration of XLFM's ties to Australia, the extent of impediments to his removal, and any international non-refoulement obligations, warranted the revocation of the visa cancellation. The Tribunal considered the weight to be given to each of these factors in determining the ultimate outcome.

The Tribunal reasoned that the very serious nature of the criminal offending weighed heavily against revocation, despite XLFM's contributions to the Australian community and the potential impact on his child. While XLFM had lived in Australia for over four years and participated in sporting and work communities, this was moderated by the fact that his offending commenced relatively soon after his arrival. His ties to Australia, including familial and social links, were considered important but also diminished by the limited time spent in the country. Regarding impediments to removal, the Tribunal found XLFM to be in good health and of an age where he possessed skills that could assist him in Kenya, dismissing claims of fear for his mental health due to a lack of supporting evidence. The best interests of his son were considered, noting the paternal relationship and XLFM's desire to remain a role model, but this was balanced against the impact of his prior conduct.

Ultimately, the Tribunal affirmed the decision to cancel XLFM's visa. While acknowledging XLFM's attempts at rehabilitation and his understanding of his wrongdoing, the seriousness of his offences and the need to protect the Australian community were found to be overriding factors. The Tribunal concluded that the weight of the factors considered did not favour revocation of the visa cancellation.