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

This matter concerned an application by BFYD, a citizen of the People's Republic of China, for review of the mandatory cancellation of his subclass 801 (partner) visa. The visa was cancelled on the grounds that BFYD had a substantial criminal record and therefore failed the character test. The Administrative Appeals Tribunal (AAT) was required to determine whether BFYD failed the character test and, if so, whether to exercise its discretion to revoke the cancellation.

The Tribunal was required to consider Ministerial Direction No. 90, which outlines the primary considerations to be taken into account, including the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, and the best interests of affected minor children in Australia. Other considerations included international non-refoulement obligations, impediments to removal, and links to the Australian community. The Tribunal's reasoning focused on the nature and seriousness of BFYD's conduct, specifically his attempted importation of ephedrine, a key precursor chemical for the manufacture of methylamphetamine. Despite BFYD having no prior criminal history, the Tribunal noted the substantial custodial sentences imposed by the sentencing court and the comments made by the sentencing judge regarding BFYD's role in a syndicate involved in the trafficking of large commercial quantities of illicit drugs.

The Tribunal found that BFYD did fail the character test. In considering whether to revoke the cancellation, the Tribunal weighed the seriousness of his conduct against other factors. While BFYD had strong links to the Australian community, including family members and a former employer who provided character references, and the best interests of his minor children in Australia were considered, these were outweighed by the risk to the Australian community posed by his involvement in the importation of a precursor for a dangerous illicit drug. The Tribunal affirmed the decision to cancel BFYD's visa.