KFMK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, KFMK, had been convicted of supplying a large commercial quantity of methylamphetamine. The reviewable decision was made on 20 October 2023, and the applicant sought review of this decision on 31 October 2023. The case was heard by Emeritus Professor P A Fairall, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the mandatory cancellation of the applicant's visa should be revoked, considering the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, the expectations of the Australian community, and the extent of impediments to her removal from Australia. This assessment was to be made in light of Direction No. 99, which guides decision-makers on these considerations.

The Tribunal considered the applicant's background, including her drug use and her involvement in the drug supply offence, which she claimed to have been coerced into by associates of a drug cartel in Mexico. While acknowledging that the applicant's actions weighed against her regarding community protection and expectations, the Tribunal found these considerations did not press heavily due to the circumstances of her alleged conscription and lack of ingrained criminal tendencies. The Tribunal noted the applicant had limited social ties in Australia beyond her fiancé, but also that impediments to her return to Mexico, such as her professional qualifications and lack of language barriers, appeared minimal. However, the Tribunal gave significant weight to the potential dangers she might face in Mexico due to her past associations with a notorious drug cartel, referencing judicial comments on the pervasive violence and corruption in that country. The Tribunal also considered reports indicating a low risk of recidivism.

The Tribunal set aside the delegate's decision and substituted a new decision that the mandatory cancellation of the applicant's visa be revoked.