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

This matter concerned an application for review of a decision to refuse to grant a visa, following the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa under section 501CA(4) of the Migration Act 1958 (Cth). The Applicant did not pass the character test due to a substantial criminal record, including convictions for supplying a commercial quantity of cannabis and dealing in the proceeds of crime. The Applicant had resided in Australia for a significant period.

The court was required to determine whether the discretion to refuse to grant the visa should be exercised, considering Ministerial Direction No. 90. This involved assessing the Applicant's criminal conduct, the risk to the Australian community, and the weight to be given to factors such as the Applicant's long period of residence in Australia and any family violence. The court also had to consider whether there was "another reason" to revoke the original decision to cancel the visa.

The court's reasoning focused on the application of Ministerial Direction No. 90, particularly Primary Consideration 1 concerning the protection of the Australian community. It acknowledged the tension between the Applicant's long residency and his criminal record. The court noted that while the Applicant had engaged in serious criminal conduct, including drug supply and acts of family violence, the Direction indicated that a higher level of tolerance might be afforded to non-citizens who have lived in Australia for most of their lives. The court found that the proper application of the Direction favoured not exercising the discretion to revoke the cancellation of the Applicant's visa.

Ultimately, the court affirmed the decision under review, finding that there was no "another reason" pursuant to s 501CA(4)(b)(ii) to revoke the original decision to cancel the Applicant's visa.