Ah-San and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Ah-San (the Applicant) to the Administrative Appeals Tribunal (the Tribunal) for the non-revocation of the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to a substantial criminal record, which included convictions for drug-related and weapons-related offences, as well as numerous traffic offences. The Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) had decided not to revoke the cancellation.

The Tribunal was required to determine whether there was "another reason" why the decision to cancel the Applicant's visa should be revoked, considering Ministerial Direction No. 99. This involved assessing the primary consideration of protecting the Australian community from harm and evaluating the Applicant's rehabilitation efforts against his risk of re-offending. The Tribunal also had to consider the "Other Considerations" outlined in the Direction, including the legal consequences of the decision, impediments to removal, impact on victims, and impact on Australian business interests.

The Tribunal reasoned that despite the Applicant's expressed remorse and engagement in rehabilitation courses aimed at addressing drug addiction and mental health issues, significant concerns remained regarding his risk of re-offending. This was based on a recent clinical assessment indicating a medium risk of re-offending, with the rehabilitation efforts being untested in the community. Furthermore, the Tribunal noted that the Applicant's stated intention to live with his brother, who was a co-offender, ran counter to the need to disassociate from previous non-prosocial associations identified as crucial for lowering his recidivist risk. The Tribunal also found that the Applicant's witnesses were unaware of the extent of his drug addiction, undermining his relapse plan. A holistic view of the evidence, particularly concerning the Applicant's extensive and consistent pattern of offending involving violence, drug trafficking, and disrespect for lawful authority, favoured affirming the Respondent's decision.

The Tribunal affirmed the decision made by the delegate of the Respondent dated 14 November 2023 to not revoke the mandatory cancellation of the Applicant's visa.