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

This matter concerned an application to revoke the mandatory cancellation of the applicant's visa, heard by Linda Kirk SM. The applicant, born in Malaysia in 1993, first arrived in Australia in 2015 on a student visa. His visa was cancelled in March 2017 after he ceased enrolment in his studies. Subsequently, the applicant engaged in criminal conduct, including drug use and supply, and was convicted of shoplifting. The core dispute revolved around whether there was "another reason" why the mandatory visa cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the applicant satisfied the character test and, if not, whether any "other reason" justified the revocation of the mandatory visa cancellation. In assessing these matters, the Tribunal was bound by Direction 90, which mandates consideration of primary considerations, including the protection of the Australian community and the best interests of minor children, as well as other considerations. The Tribunal specifically had to evaluate the nature and seriousness of the applicant's conduct, the risk to the Australian community, and any impediments to his removal from Australia.

In its reasoning, the Tribunal applied the principles outlined in Direction 90. It found that the applicant's offences, particularly those involving the supply of methylamphetamine between September and November 2019, were serious due to the drug's addictive nature and its detrimental impact on the community. The Tribunal considered the factors listed in paragraph 8.1.1(1) of the Direction, including the cumulative effect of repeated offending and the trend of increasing seriousness. While acknowledging the applicant's claims of abstinence from drugs since his incarceration in December 2019 and his improved mental clarity, the Tribunal ultimately found that the applicant did not satisfy the character test.

The Tribunal concluded that section 501CA(4)(b)(i) of the Act could not be invoked to revoke the mandatory visa cancellation decision. The decision affirmed the mandatory cancellation of the applicant's visa.