Ng and Minister for Immigration, Citizenship, Migrant Services 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 44-year-old man who arrived in Australia at age 11, had been subject to a mandatory visa cancellation due to a substantial criminal record involving border control drug convictions. The Administrative Appeals Tribunal (the Tribunal) was tasked with determining whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision, considering the primary and other considerations outlined in Direction No. 79.

The Tribunal was required to assess the weight of various factors under Direction No. 79. Specifically, it had to consider the "nature and seriousness of the conduct" and the "risk to the Australian community," both of which weighed against revocation. The Tribunal also had to consider the "best interests of minor children in Australia," a primary consideration that involved evaluating the relationship between the applicant and his three minor nephews, the potential parental role he might play, the impact of his conduct on them, and the effect of separation. Other considerations, such as the strength and duration of the applicant's ties to Australia, impediments to his return to Malaysia, and the impact of the COVID-19 pandemic, were also relevant.

The Tribunal found that while the seriousness of the applicant's conduct and the risk to the community weighed against revocation, the best interests of his minor nephews, particularly the impact of separation on them, were significant. After weighing all the primary and other considerations, the Tribunal was satisfied that there was another reason why the decision to cancel the applicant's visa should be revoked. Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation.