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

This matter concerned an application by the Applicant to review the mandatory cancellation of his Class BB Subclass 155 Resident Return visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record and being sentenced to a term of imprisonment of 12 months or more. The Applicant sought to argue that there was another reason why the cancellation should be revoked. The decision was made by Senior Member Theodore Tavoularis.

The legal issues before the court were whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked, and how the principles outlined in Direction No. 90, including the primary and other considerations, should be applied to the Applicant's circumstances. Specifically, the court had to consider the Applicant's risk of recidivism, his ties to the Australian community, and the expectations of the Australian community regarding non-citizens who engage in serious criminal conduct.

The Senior Member applied the framework provided by Direction No. 90, which emphasises Australia's sovereign right to determine who remains in the country and the community's expectation that individuals who engage in serious criminal conduct will be denied or forfeit their privilege to remain. The court considered the primary considerations of protecting the Australian community, the nature of the Applicant's conduct, the best interests of minor children, and community expectations. It also examined other considerations, including the extent of impediments to removal and the strength and duration of the Applicant's ties to Australia. While acknowledging the Applicant had completed rehabilitative programs and expressed an intention to continue such engagement, the Senior Member found that his propensity for drug abuse remained in partial remission and was yet to be proven in the broader community. The court noted the unsettling element of the Applicant's continued contact with a negative peer group and his return to the same environment that facilitated his drug abuse and offending. Despite the Applicant's stable family background and past reliance on familial and spousal relationships, these factors were not considered sufficient to outweigh the serious criminal conduct and the associated risks.

The Senior Member affirmed the decision to cancel the Applicant's visa, finding that there was no other reason why the cancellation should be revoked.