QYFM and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of QYFM and the Minister for Home Affairs concerning the mandatory cancellation of the Applicant's Subclass 100 (Partner) visa on character grounds. The Applicant, who arrived in Australia in 1997 and returned in 2011, was granted a Partner visa. This visa was mandatorily cancelled on 8 November 2017, following the Applicant's conviction for importing a marketable quantity of cocaine, for which he received a 10-year custodial sentence with a non-parole period of seven years. The Applicant sought revocation of this cancellation, but a delegate of the Minister refused to revoke the decision. The Applicant then applied to the AAT for a review of that refusal.

The primary legal issue before the AAT was whether there was "any other reason" to revoke the mandatory cancellation of the Applicant's visa, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the AAT to determine if the discretion to revoke the cancellation could be exercised, considering the Applicant's criminal conduct and its implications for the protection of the Australian community. The AAT noted that the weight of authority favoured the view that the balancing of factors favouring refusal to revoke is part of the single exercise of determining whether there is another reason to revoke the cancellation.

In its reasoning, the AAT applied the principles outlined in Direction 79, which mandates consideration of the protection of the Australian community as a primary consideration. The Tribunal emphasised that remaining in Australia is a privilege for non-citizens, accompanied by an expectation of law-abiding behaviour. The Applicant's criminal conduct, involving the importation of a marketable quantity of cocaine, was deemed extremely serious. The AAT considered the nature and seriousness of the Applicant's conduct, the risk to the community of further offending, and the sentence imposed by the court. The Applicant acknowledged the gravity of his actions and their detrimental impact on the community.

Ultimately, the AAT concluded that it could not exercise the discretion to revoke the cancellation of the Applicant's visa. The decision under review was affirmed.