Moli 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, a 38-year-old New Zealand citizen who arrived in Australia at age 24, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) following his conviction for possessing a trafficable quantity of methylamphetamine with intent to sell or supply. The Applicant sought revocation of this cancellation. The Administrative Appeals Tribunal (AAT) was the court required to determine the reviewable decision.

The legal issues before the Tribunal were whether the Applicant passed the character test as defined by s 501(6) of the Migration Act, and if not, whether there was another reason why the visa cancellation should be revoked under s 501CA(4) of the Act. In considering these issues, the Tribunal was required to assess various factors including the protection of the Australian community, the nature and seriousness of the Applicant's offending, the risk of future offending, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of any children, community expectations, and the extent of impediments to the Applicant if removed from Australia.

The Tribunal reasoned that while the Applicant did not pass the character test due to his criminal offending, there were compelling reasons to revoke the visa cancellation. The Tribunal gave significant weight to the Applicant's strong ties to Australia, including his partner and children who were Australian citizens, and his established community and employment links. It also considered the impediments to his return to New Zealand, although this was afforded less weight. Crucially, the Tribunal found that the risk of the Applicant re-offending was mitigated by evidence of his engagement in drug and alcohol rehabilitation programs and his commitment to maintaining sobriety. The Tribunal concluded that the factors favouring revocation, particularly the impact on his Australian family and his rehabilitation efforts, outweighed the risk to the Australian community.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted it with a decision that the cancellation of the Applicant's visa be revoked.