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

This matter concerned an application for judicial review of a decision to cancel the applicant's visa. The applicant, JWKG, a citizen of Vietnam, held a Bridging (General) visa. His visa was cancelled due to a substantial criminal record, and he conceded that he failed the character test. Separately, his application for a protection visa had been refused. The court was required to consider the application of Direction No. 79 in determining whether there was another reason to revoke the mandatory visa cancellation.

The legal issues before the court were whether the Tribunal had erred in its consideration of the mandatory visa cancellation under section 501(3A) of the Migration Act 1958 (Cth) and the subsequent revocation provisions under section 501CA(4). Specifically, the court had to determine if the Tribunal had properly applied Direction No. 79, which mandates consideration of factors such as the protection of the Australian community, the expectations of the Australian community, non-refoulement considerations, the strength and nature of the applicant's ties to Australia, and impediments to removal.

The court reasoned that while the applicant failed the character test due to his conviction for cultivating a commercial quantity of cannabis and subsequent imprisonment, the Tribunal was required to consider whether there was "another reason" to revoke the mandatory cancellation. In applying Direction No. 79, the Tribunal acknowledged that the protection of the Australian community and the expectations of the community weighed against revocation, particularly given the seriousness of drug offences. However, the Tribunal found that the strength and nature of JWKG's ties to Australia weighed heavily in favour of revocation. This included his employment history, tax contributions, and community engagement, as evidenced by his TAFE studies and assistance to a priest. The Tribunal also noted positive reports of his conduct in prison. The court ultimately found that these factors, when weighed together, constituted another reason to revoke the mandatory cancellation.

The court set aside the original decision and substituted a new decision, revoking the mandatory cancellation of JWKG's visa.