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

This matter concerned an application by RDHX, a citizen of Malaysia, for the revocation of a mandatory visa cancellation. RDHX had been granted a Class BS Subclass 801 (Partner) visa, but this visa was mandatorily cancelled after RDHX failed to pass the character test due to a single instance of offending involving trafficking in a drug of dependence in a large commercial quantity and knowingly dealing with the proceeds of crime. The decision was heard by Dr Stewart Fenwick, Senior Member.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by the *Migration Act 1958* (Cth). In determining this, the Tribunal was required to apply Ministerial Direction No. 90, which sets out the framework and considerations for such decisions. This involved assessing various primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the best interests of any minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that Australia has a sovereign right to determine who remains within its borders, and that non-citizens who engage in criminal conduct should expect to forfeit the privilege of remaining in Australia. The Tribunal noted that the Australian community expects the Government to cancel visas for non-citizens who engage in conduct raising serious character concerns, irrespective of whether they pose a measurable risk of physical harm. Applying these principles, the Tribunal considered the specific factors outlined in Ministerial Direction No. 90. It found that RDHX failed the character test due to the serious nature of the offending. The Tribunal then assessed the protection of the Australian community, the nature and seriousness of the conduct, the best interests of minor children, and the expectations of the Australian community. In relation to the best interests of minor children, the Tribunal found the evidence of a parental relationship to be limited and the impact of RDHX's return to Malaysia on any such relationship to be unsubstantiated, leading this consideration to weigh neutrally. The Tribunal concluded that, on the evidence presented, there was no other reason to revoke the mandatory visa cancellation.