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

This matter concerned an appeal by SCJD, a Vietnamese citizen, against the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The cancellation was based on SCJD failing to pass the character test due to a substantial criminal record, specifically a conviction for trafficking a commercial quantity of methylamphetamine and several other related offences, for which he was sentenced to a term of imprisonment of 12 months or more. The Administrative Appeals Tribunal was required to determine if there was "another reason" to revoke the mandatory cancellation of his visa, applying Ministerial Direction No. 79.

The primary legal issue before the Tribunal was whether, having found that SCJD did not pass the character test, there existed any "another reason" to revoke the mandatory cancellation of his visa. This required the Tribunal to consider various factors outlined in Ministerial Direction No. 79, including the protection of the Australian community, the nature and seriousness of SCJD's conduct, the risk of reoffending, the best interests of any affected minor children, the expectations of the Australian community, and international non-refoulement obligations, as well as the strength, nature, and duration of SCJD's ties to Australia and any impediments to removal.

The Tribunal reasoned that while SCJD had a history of rehabilitation efforts and had previously had a deportation order revoked, his current offending conduct, which led to a significant prison sentence for drug trafficking, weighed heavily against revoking the visa cancellation. The Tribunal noted that SCJD's son was no longer a minor, and information regarding his brother's minor children was insufficient for a determination. Furthermore, the Tribunal interpreted the "expectations of the Australian community" as a statement of government policy rather than a matter for individual assessment, concluding that the community expects non-citizens to obey Australian laws, and serious breaches, such as drug trafficking, would be held against the individual. The Tribunal found that the primary considerations, particularly the protection of the Australian community and the seriousness of the offending conduct, outweighed other considerations.

The Tribunal affirmed the decision to cancel SCJD's visa, finding that the mandatory cancellation should not be revoked.