Ahmetaj and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Ahmetaj and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the non-revocation of a mandatory cancellation of a Class BS Subclass 801 Partner visa. The applicant did not pass the character test, and the central dispute was whether there was another reason to revoke the mandatory cancellation decision, specifically in light of Ministerial Direction No. 90, which governs such considerations.

The Tribunal was required to determine whether, after considering the primary and other considerations outlined in Ministerial Direction No. 90, there were sufficient grounds to revoke the mandatory cancellation of Mr. Ahmetaj's visa. This involved weighing the seriousness of the offending conduct, which included drug trafficking, against other factors such as the applicant's ties to Australia, the impact on his family, and his contributions to the community.

The Tribunal reasoned that while the applicant's drug trafficking offence was a serious matter, it was necessary to consider the "other considerations" as per the Direction. The Tribunal found that the applicant had lived in Australia for 25 years, had significant family ties, including a wife with serious health issues who relied on his support, and had engaged in positive community activities and charitable acts. Despite acknowledging that the applicant had used his community connections for illicit purposes, the Tribunal concluded that the strength and nature of his ties to Australia, coupled with the potential emotional hardship to his wife and her family if he were deported, weighed in favour of revoking the cancellation. However, the Tribunal ultimately found that the Direction mandated that primary considerations, such as the character test failure due to drug trafficking, generally be given greater weight. Consequently, the Tribunal determined it could not exercise the discretion to revoke the cancellation.