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

The applicant, a non-citizen who arrived in Australia in 2007 and was granted a subclass 856 visa, sought to have the mandatory cancellation of his visa revoked. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had cancelled the applicant's visa under section 501(3A) of the *Migration Act 1958* because the applicant failed the character test, having been sentenced to a term of imprisonment of 12 months or more. The matter was heard by Emeritus Professor P A Fairall, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, as provided for in section 501CA(4) of the Act. This involved applying the principles set out in Direction No. 79, which mandates the consideration of primary and other considerations, including the best interests of minor children in Australia affected by the decision. The Tribunal had to weigh these considerations to decide whether to revoke the cancellation.

The Tribunal reasoned that the applicant's offending, which involved a scheme to import tobacco products and evade import duty, demonstrated a significant lack of respect for Australian law and policy, and involved deceit. Despite the applicant's claims of financial pressure and personal difficulties, his actions were undertaken in his late thirties and were not attributable to youthful indiscretion. The Tribunal found that the risk of recidivism was not trivial, given his past conduct and potential vulnerability to exploitation by former associates. While acknowledging the best interests of the applicant's three minor children in Australia as a primary consideration, the Tribunal concluded that this factor did not outweigh the seriousness of the applicant's offending and the associated risks.

The Tribunal affirmed the decision to cancel the applicant's visa, finding that there was no other reason why the original decision should be revoked.