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

This matter concerned an appeal by JZGW (the applicant) against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant had a substantial criminal record, including convictions for drug trafficking, which meant he did not pass the character test. The central dispute was whether the discretion to revoke the mandatory cancellation of his visa should have been exercised in his favour.

The court was required to determine whether the decision-maker had properly considered the primary considerations relevant to the exercise of discretion, specifically the protection of the Australian community from criminal or other serious conduct, and the best interests of a minor child. Additionally, the court had to assess whether the decision-maker had given adequate weight to other relevant considerations, such as the expectations of the Australian community regarding non-citizens who commit serious offences.

The court affirmed the decision to cancel the visa, applying established principles regarding Australia's sovereign right to control the entry and presence of non-citizens. It emphasised that remaining in Australia is a privilege, not a right, and that this privilege is conferred on the expectation of law-abiding behaviour. The court found that the applicant's offending, involving the trafficking of commercial quantities of cannabis, was very serious, as reflected in the sentencing remarks and the substantial term of imprisonment imposed. While acknowledging the applicant's long period of residence in Australia and the potential impact on his child, the court concluded that these factors were insufficient to outweigh the paramount consideration of protecting the Australian community from the risk of further criminal conduct. The court noted that while violent or sexual crimes are viewed particularly seriously, the nature and seriousness of the applicant's drug trafficking offences were significant in themselves.