YKSB and Minister for Home Affairs (Migration)

The applicant, YKSB, sought to have the mandatory cancellation of his Class BF Transitional (Permanent) visa revoked. The cancellation was based on the applicant failing to pass the character test due to a criminal conviction attracting a sentence of 12 months' imprisonment or more. The Minister for Home Affairs opposed the revocation. The matter was heard by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was any other reason to revoke the mandatory cancellation of the applicant's visa, notwithstanding his failure to pass the character test. This required the Tribunal to consider the considerations outlined in Direction 79, particularly the protection of the Australian community from criminal or other serious conduct, and the risk to the community should the applicant commit further offences. The Tribunal also had to weigh the expert evidence regarding the applicant's risk of reoffending against the seriousness of his past offending.

The Tribunal considered the detailed criminal history of the applicant, which involved multiple instances of indecent assault and gross indecency against persons under the age of 16. While expert evidence from Mr. Cummins assessed the applicant's current risk of committing a further sexual offence as "Low," the Tribunal noted that this assessment was made in the context of the applicant's age and cohabitation, and that the nature and seriousness of the past offending were significant. The Tribunal acknowledged that even a low risk of reoffending might not be sufficient to justify revocation when balanced against the gravity of the applicant's past conduct and the primary consideration of protecting the Australian community. The Tribunal ultimately affirmed the decision to refuse to revoke the mandatory cancellation of the applicant's visa.