Cho and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Cho against the mandatory cancellation of his Class BB 155 Resident Return visa, which was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test. The dispute centred on whether there was another reason why the visa cancellation should be revoked, a consideration guided by Ministerial Direction No. 79. The case was heard by D. J. Morris SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr Cho passed the character test, and if not, whether there was another reason to revoke the mandatory visa cancellation. This required the Tribunal to assess the weight to be given to various considerations outlined in Ministerial Direction No. 79, including the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, the seriousness of Mr Cho's drug offences, and other relevant factors. The Tribunal was also required to consider whether Mr Cho had provided false or misleading information to the Department of Home Affairs.

The Tribunal reasoned that Mr Cho failed the character test due to his substantial criminal record, specifically his conviction for knowingly taking part in the manufacture and supply of a large commercial quantity of methylamphetamine, which exposed a child to the manufacturing process. The Tribunal found that Mr Cho was significantly involved in the drug operation, contrary to his initial submissions, and noted his provision of false and misleading information on a personal circumstances form. While acknowledging Mr Cho's remorse and his stated intention to rehabilitate, the Tribunal found that the seriousness of his offending, particularly the exposure of a child to a clandestine drug laboratory, weighed heavily against revocation. The Tribunal concluded that the primary considerations, including the protection of the Australian community, were not outweighed by other factors, and therefore affirmed the decision to cancel Mr Cho's visa.