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

This matter concerned an appeal by KQDV against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to mandatorily cancel her visa. The applicant had been sentenced to a term of imprisonment of 16 months for drug supply and possession offences, meaning she did not pass the character test under section 501(6)(a) of the Migration Act 1958 (Cth) due to having a substantial criminal record. The appeal was heard by Deputy President Britten-Jones.

The primary legal issue before the Tribunal was whether there was another reason, within the meaning of section 501CA(4)(b)(ii) of the Migration Act, to revoke the mandatory visa cancellation decision. This required an evaluation of the factors for and against revocation, guided by Direction 90, which sets out the considerations for visa refusal and cancellation. The applicant conceded she did not pass the character test, so the focus was on whether the circumstances warranted revocation.

In its reasoning, the Tribunal considered the principles outlined in Direction 90, including the protection of the Australian community. It noted that while drug offences are viewed seriously, the applicant played a lesser role in a joint criminal enterprise and the sentencing magistrate considered the offending to be at the lower end of objective seriousness. However, the Tribunal also took into account that the applicant committed a further offence after a previous warning and had initially lied to immigration officials. Despite these negative factors, the Tribunal found that the applicant posed a low risk of reoffending, and that her significant ties to the Australian community and the impediments she would face if removed from Australia outweighed the primary considerations.

Consequently, the Tribunal decided to revoke the mandatory visa cancellation decision.