Dao and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Dao for the revocation of a mandatory visa cancellation made under section 501(3A) of the Migration Act 1958 (Cth). The visa cancellation was based on Mr Dao failing the character test due to having a substantial criminal record, specifically being sentenced to 18 years imprisonment for an offence involving a large commercial quantity of drugs. The Administrative Appeals Tribunal was required to consider whether there was another reason why the original decision to cancel Mr Dao's visa should be revoked, in accordance with section 501CA(4)(b)(ii) of the Act.

The primary legal issue before the Tribunal was to determine if there were sufficient grounds to revoke the mandatory visa cancellation, given that Mr Dao had conceded he did not pass the character test. This required the Tribunal to assess the relevant considerations outlined in Direction No. 65, particularly the protection of the Australian community. The Tribunal had to weigh the seriousness of Mr Dao's conduct, which involved possession of approximately 31.9 kilograms of high purity heroin and 6.657 grams of methylamphetamine, with a potential street value ranging from $25 million to $47 million, against any factors favouring revocation.

The Tribunal reasoned that Mr Dao's previous minor criminal history was not relevant to the current consideration as it did not trigger section 501(6)(a) of the Act. However, the current offence, involving a massive quantity of drugs with a significant street value, clearly constituted a substantial criminal record under section 501(7)(c) of the Act, leading to the mandatory cancellation. Applying the principles from *Gaspar v Minister for Immigration and Border Protection*, the Tribunal understood that section 501CA(4)(b)(ii) required a single-stage assessment of all factors for and against revocation. The Tribunal noted that the nature and scale of the drug offence, and its potential impact on the community, were significant factors against revocation.