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

This matter concerned the mandatory cancellation of the applicant's Class AH Subclass 101 Child visa, pursuant to section 501(3A) of the *Migration Act 1958* (Cth). The applicant, a citizen of Kenya, had been convicted of attempted sexual intercourse without consent and robbery armed with an offensive weapon, leading to him failing the character test. The applicant sought review of the delegate's decision not to revoke the visa cancellation. The Administrative Appeals Tribunal (AAT) had previously affirmed the delegate's decision, but this was quashed on appeal and remitted for re-hearing. The central question before the Tribunal was whether there was "another reason" to revoke the visa cancellation, as contemplated by section 501CA(4)(b)(ii) of the Act, having regard to Ministerial Direction No. 99.

The Tribunal was required to determine whether the applicant had established "another reason" to revoke the visa cancellation, necessitating a consideration of the factors outlined in Direction No. 99. These included the primary considerations of protection of the Australian community from criminal or other serious conduct, whether the conduct engaged in constituted family violence, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider the "other" considerations, such as the legal consequences of the decision and the extent of impediments if removed. The applicant did not pass the character test, so the determination hinged entirely on the existence of another reason for revocation.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's offending, including violent and sexual crimes, and the cumulative effect of his repeated criminality over a 15-month period. It noted that these crimes weighed heavily against him in the consideration of protecting the Australian community. However, the Tribunal also carefully weighed the other considerations. It found that while the applicant's conduct was extremely serious, it did not reach a level where any risk of repetition would be unacceptable. The Tribunal ultimately concluded that, after considering and weighing all the relevant factors under Direction No. 99, there was another reason why the visa cancellation decision should be revoked.

Consequently, the Tribunal ordered that the decision not to revoke the cancellation of the applicant's visa be set aside, and that the visa cancellation decision itself be revoked.