GWSC and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the applicant's visa, GWSC. The applicant had been convicted of serious drug and weapons offences, including cultivating a commercial quantity of cannabis, possessing ICE and ecstasy, possessing an unlicensed firearm, and committing an indictable offence whilst on bail. These convictions resulted in a sentence of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 3 months, which enlivened the mandatory cancellation provisions of the *Migration Act 1958* (Cth) due to GWSC having a substantial criminal record.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel GWSC's visa should be revoked, as provided for in section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the merits of the decision under review in light of Ministerial Direction No. 65, which mandates the cancellation of a visa for non-citizens serving a sentence of imprisonment for an offence carrying a sentence of 12 months or more, and outlines the factors to be considered when assessing whether to revoke such a cancellation.

The Tribunal reasoned that while the applicant's offences were objectively serious, the sentencing judge had considered her culpability to be at the lower end of the scale for the cultivation offence, noting the absence of sophisticated criminal rings and exploitation. The judge also found that the firearm and proceeds of crime charges were associated with the cultivation offence and that the applicant had already been substantially punished for committing an offence whilst on bail. The Tribunal acknowledged the applicant's evidence of rehabilitation, her cessation of drug use in prison, and her support network. However, the Tribunal ultimately found that these factors did not constitute "another reason" to revoke the mandatory cancellation, as the primary consideration of protecting the Australian community weighed heavily against revocation given the seriousness and nature of the offending.

The Tribunal affirmed the decision to refuse to revoke the mandatory visa cancellation.