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

The Administrative Appeals Tribunal considered the case of DJPM and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning the cancellation of the applicant's visa under section 501(2) of the *Migration Act 1958*. The applicant did not pass the character test, leading to the potential cancellation of his visa. The central dispute revolved around whether the discretion not to exercise the power to cancel the visa should be exercised, particularly in light of Ministerial Direction No. 79.

The Tribunal was required to determine the weight to be given to the primary considerations and other considerations outlined in Ministerial Direction No. 79, specifically in relation to the protection of the Australian community. This involved assessing the nature and seriousness of the applicant's conduct and the risk to the community should further offending occur. The Tribunal also had to consider the principles that guide decision-makers when evaluating criminal conduct, including the seriousness of crimes against vulnerable individuals and the cumulative effect of offending.

In its reasoning, the Tribunal found that while the applicant's conduct in administering a drug to his infant child, Child A, was extremely foolish and placed the child in mortal peril, it was not characterised as a crime of violence. The Tribunal was satisfied that the applicant did not intend to harm the child, and the harm resulted from the administration of a drug the applicant did not realise was toxic. However, the Tribunal did find that the crime was committed against a vulnerable member of the community, given the infant's extreme vulnerability and the parental obligation to protect. Despite this, the Tribunal concluded that the applicant's limited criminal history, which apart from minor traffic infringements consisted solely of this single incident, and the circumstances surrounding it, did not warrant the cancellation of his visa. The Tribunal ultimately decided not to exercise the power to cancel the applicant's visa.