Riscuta and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to affirm the mandatory cancellation of the Applicant's Class BF Transitional (Permanent) visa. The Applicant, born in Romania in 1957, had a significant criminal history in Australia, including multiple convictions for drug offences, notably possession, supply, and trafficking of heroin, which resulted in substantial terms of imprisonment. The Applicant had arrived in Australia in 1980, escaping the communist regime, and had established family ties, including two sons and grandchildren.

The legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether discretion should be exercised to revoke the mandatory visa cancellation. Specifically, the Tribunal was required to consider the primary consideration of protecting the Australian community from harm, as outlined in the relevant Direction, and to assess the nature and seriousness of the Applicant's conduct, as well as the risk to the community should further offences be committed. The Tribunal also had to weigh this against any other relevant considerations.

The Tribunal reasoned that the Applicant's extensive history of drug offending, including trafficking heroin, was viewed very seriously by the Australian Government and community. While acknowledging the Applicant's age and stated inability to re-offend due to ill health, the Tribunal found that the seriousness of his past conduct, particularly the drug trafficking offences, weighed heavily against him. The Tribunal applied paragraph 8.1 of the Direction, which mandates consideration of the protection of the Australian community, and paragraph 8.1.1(1), which details factors to be considered when assessing the seriousness of conduct. The Tribunal concluded that the Applicant did not pass the character test and that the discretion to revoke the mandatory cancellation could not be exercised.

Consequently, the Tribunal affirmed the delegate's decision of 6 December 2022, which had refused to revoke the mandatory cancellation of the Applicant's Class BF Transitional (Permanent) visa under subsection 501(CA)(4) of the *Migration Act 1958* (Cth).