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

The case of CVKB and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerned the cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa under section 501(3A) of the Migration Act 1958 (Cth) on the grounds that the applicant did not meet the character test. The applicant sought to have this cancellation revoked, arguing that there was another reason to do so. The matter was heard by M O'Loughlin M.

The primary legal issue before the court was whether there was another reason to revoke the visa cancellation, considering the provisions of Ministerial Direction No. 90. This involved assessing various factors, including the protection of the Australian community, the seriousness of the applicant's past conduct, the risk of future offending, and crucially, the best interests of the applicant's minor child. The court also considered the non-refoulement obligations owed to the applicant.

The court reasoned that while the applicant's convictions for cultivating and trafficking cannabis indicated serious offending, there was no evidence of a trend of increasing criminal behaviour, nor had the applicant provided false or misleading information to the Department in a manner that would weigh against revocation. A significant factor favouring revocation was the best interests of the applicant's young daughter, born in 2020. Despite the applicant's imprisonment preventing extensive contact, the court found that efforts had been made to maintain a parental relationship, and his absence would negatively impact the child. The court also noted that non-refoulement obligations were owed to the applicant.

Ultimately, the court found that the considerations, particularly the best interests of the minor child, weighed strongly in favour of revoking the visa cancellation. Consequently, the decision under review was set aside.