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

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel Mr. Kim's Class BB Five Year Resident Return (Subclass 155) visa. Mr. Kim, a Cambodian citizen who arrived in Australia in 1987, had a substantial criminal record, including violent offences and drug-related crimes, which meant he failed the character test under section 501(2) of the *Migration Act 1958* (Cth). The delegate's decision to cancel Mr. Kim's visa was under review.

The Tribunal was required to determine whether the discretion under section 501(2) of the *Migration Act 1958* should be exercised to cancel Mr. Kim's visa, considering Ministerial Direction No. 99. This involved assessing Mr. Kim's criminal history, his ties to Australia, and the best interests of minor children affected by the decision, in accordance with the framework provided by the Direction. The Tribunal also had to consider Mr. Kim's efforts towards rehabilitation and his insight into his past conduct.

The Tribunal reasoned that while Mr. Kim's criminal record was significant and he failed the character test, several factors weighed in favour of setting aside the cancellation decision. These included Mr. Kim's long period of residence in Australia, his strong ties to the Australian community, and his efforts to address his substance abuse issues, including commencing a Buvidal injection program. The Tribunal also considered the best interests of several minor children in Australia who are related to Mr. Kim, finding that their interests were a significant factor favouring non-cancellation. The Tribunal concluded that the cumulative weight of these considerations justified setting aside the delegate's decision.

The Tribunal set aside the delegate's decision to cancel Mr. Kim's visa.