Sam and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Sam to review the mandatory cancellation of his visa by the Minister for Home Affairs. Mr Sam had failed to pass the character test due to a substantial criminal record, specifically for drug trafficking, which resulted in a sentence of imprisonment of 12 months or more. The court was required to determine whether the Minister's discretion to revoke the visa cancellation should be exercised in Mr Sam's favour.

The legal issues before the court included the application of Direction No. 65, which outlines the primary considerations for exercising the discretion to revoke a mandatory visa cancellation. These considerations encompassed the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the conduct, the risk to the Australian community, the best interests of any minor children affected by the decision, and the expectations of the Australian community. The court also had to consider other relevant factors, such as the strength, nature, and duration of Mr Sam's ties to Australia and any impediments he might face if removed from Australia.

The court reasoned that while Mr Sam's criminal conduct was serious and warranted the mandatory cancellation, a comprehensive assessment of the primary considerations weighed in favour of revoking the cancellation. The court found that Mr Sam had demonstrated significant remorse and had undertaken substantial rehabilitation programs in prison, indicating a reduced risk of reoffending. Furthermore, the court gave considerable weight to the best interests of his Australian citizen son and step-grandchildren, with whom he had a close and supportive relationship. The evidence suggested that Mr Sam's deportation would have a detrimental impact on these children, and his wife indicated she would accompany him to Cambodia, severing their ties with the Australian family. The court concluded that the strength of Mr Sam's ties to Australia, particularly his family relationships and his plans to resume employment and provide for his family, along with his demonstrated rehabilitation, outweighed the risk to the Australian community.

Consequently, the court set aside the reviewable decision and ordered that the cancellation of Mr Sam's visa be revoked.