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

This matter concerned an application by YTLT (the applicant) to the Administrative Appeals Tribunal for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Class EN Subclass 186 Employer Nomination Scheme visa. The applicant had failed to pass the character test due to convictions for six counts of assault with act of indecency, for which he received an aggregate sentence of five years imprisonment with a three-year non-parole period. The sole issue before the Tribunal was whether there was another reason why the visa cancellation should be revoked, pursuant to section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether, in light of Ministerial Direction No. 79, there was another reason to revoke the mandatory visa cancellation. This involved weighing various considerations, including the nature and seriousness of the applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the best interests of any minor children, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and any international non-refoulement obligations or impediments to removal.

In its reasoning, the Tribunal acknowledged the gravity of the applicant's offences, which involved an abuse of trust and the vulnerability of his victims, including a child present during at least one incident. The Tribunal noted the sentencing Magistrate's findings that the behaviour was objectively grave and that the applicant continued to offend because he was "getting away with it," indicating an awareness of the unacceptability of his conduct. Despite these serious findings, the Tribunal also considered the applicant's evidence of remorse, his participation in rehabilitation programs, his deepening Christian faith, and the support offered by his Pastor and a former employer, who provided evidence of his changed character and potential for future employment.

Ultimately, the Tribunal decided to set aside the delegate's decision not to revoke the visa cancellation. In substitution, the Tribunal revoked the mandatory cancellation of the applicant's visa. This decision was made after weighing all the considerations, acknowledging the difficulty presented by the seriousness of the crimes and the risk of reoffending, but finding that the applicant had demonstrated he was capable of reform and could make a positive contribution to the Australian community.