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

This matter concerned an application for review by ZCGS (the Applicant) of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his visa. The Applicant, a citizen of Iraq, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, specifically a conviction for sexual intercourse without consent for which he received a significant term of imprisonment. The Applicant sought revocation of this cancellation under section 501CA(4) of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the decision to cancel the Applicant's visa should be revoked, as required by section 501CA(4)(b) of the Act. This required the Tribunal to consider various factors, including the best interests of minor children affected by the decision, and to assess whether these factors, when weighed against the Applicant's offending history and the reasons for the mandatory cancellation, warranted the revocation of the visa cancellation. The Tribunal was also required to consider the Applicant's non-refoulement obligations and the legal consequences of his indefinite detention.

The Tribunal's reasoning focused on the consideration of the best interests of two minor children in Australia, who were the children of the Applicant's partner. Despite the non-parental nature of the Applicant's relationship with these children, the Tribunal found that he had developed a meaningful relationship with them, providing emotional support and gifts. The Tribunal accepted that the Applicant was likely to play a positive parental role in the future, given his serious relationship with the children's mother and the absence of evidence of negative impact on the children. The Tribunal concluded that the separation from the Applicant would likely result in the children losing out on his considerable emotional and practical assistance, and therefore this primary consideration weighed moderately in favour of revoking the mandatory cancellation.

The Tribunal ultimately found that there was "another reason" to revoke the mandatory cancellation of the Applicant's visa. Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the visa cancellation.