AAT Decision of Interest: GYNF and Minister for Home Affairs (Migration) [2019] AATA 959 (21 May 2019)

A recent Administrative Appeals Tribunal decision has received some media attention.

In this case, the Tribunal directed that a decision under review be set aside and that the Visa Applicant not be refused a Subclass 155 (Resident Return) visa under s501(1) of the Migration Act 1958, failure of the Character Test.

The visa applicant had been charged in March 2015 with sexually based offences involving a child. In summary, the Visa Applicant communicated online and engaged in inappropriate sexual communication with an undercover police officer, whom he believed to be a young child, and with the intention of procuring to engage in sexual activity.

The sentences imposed by the Court were at the lower end of the scale of possible sentences. The Visa Applicant was ordered to perform 120 hours of community service within 18 months and was placed on a Register of Sex Offenders for eight years.

Based on the evidence provided by the Visa Applicant and independent expert opinion, the Tribunal was of the view that the risk of reoffending is low and the prospects of rehabilitation are good. The risk to the Australian community is therefore considered low. The Tribunal also found that denial of the visa would have a detrimental effect on the visa applicant’s Australian citizen family.

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