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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class XA Subclass 866 protection visa. The applicant did not pass the character test due to a substantial criminal record, having been sentenced to six years imprisonment for importing border control drugs and attempting to import border control precursors. The core dispute revolved around whether there was another reason why the mandatory cancellation of the applicant's visa should be revoked, considering Ministerial Direction No 79.

The court was required to determine whether the applicant passed the character test, which involved assessing if he had a substantial criminal record as defined by the Migration Act 1958 (Cth). Further, the court had to consider whether, despite not passing the character test, there were other compelling reasons to revoke the visa cancellation, specifically in light of Australia's non-refoulement obligations and the hardship that would befall the applicant if returned to China. The court also had to apply the principles outlined in Ministerial Direction No 79, particularly concerning the applicant's ties to Australia and the impact of cancellation on his family.

The court found that the applicant did not pass the character test due to his substantial criminal record, as he had been sentenced to a term of imprisonment exceeding 12 months. However, the court determined that Australia's international non-refoulement obligations and the significant hardship to the applicant if returned to China weighed heavily in favour of revoking the cancellation decision. The court considered the applicant's arrival in Australia at age 17, his positive contributions to the community prior to his offending, and the fact that his criminal conduct occurred some five years after his arrival and comprised his only offences. Crucially, the court found that removing the applicant would have a devastating impact on his Australian citizen mother, who feared persecution in China and was unable to travel. The court also considered the potential impact on the applicant's partner and her son.

The decision under review was set aside and substituted with a decision revoking the cancellation of the applicant's visa.