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

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The Applicant had been convicted of serious drug trafficking offences, leading to the cancellation of her visa. The core of the dispute revolved around whether the discretion to refuse to grant the visa should be exercised in her favour, particularly in light of Ministerial Direction No. 90. The decision was made by A G Melick AO SC, Deputy President.

The legal issues before the court were whether the Applicant passed the character test, and if not, whether the discretion to refuse to grant the visa should be exercised. This required a detailed consideration of the Applicant's criminal conduct, specifically her involvement in the importation of commercial quantities of methamphetamine, MDMA, and cocaine, for which she was sentenced to 15 years imprisonment with a non-parole period of 11 years and six months. The court also had to determine the appropriate weight to be given to both primary and other considerations under Ministerial Direction No. 90, including the protection of the Australian community and the risk of reoffending.

The Deputy President's reasoning focused on the interpretation and application of Ministerial Direction No. 90, drawing on principles established in cases such as *Suleiman v Minister for Immigration and Border Protection*. The court acknowledged that while primary considerations, such as the protection of the Australian community, are generally given greater weight, "other considerations" are not necessarily secondary and can, in certain circumstances, be afforded the greatest weight. In this instance, despite the gravity of the Applicant's offending, the Deputy President found there to be an extremely low risk of reoffending. This assessment, when balanced against the other considerations, led to the exercise of discretion in the Applicant's favour.

Consequently, the Deputy President set aside the decision under review and substituted it with a finding that the cancellation of the Applicant's visa was revoked.