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

This matter concerned an application to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa. The applicant, who had arrived in Australia as a child and had resided there for many years, failed to pass the character test due to serious drug offending and a lengthy traffic history. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The decision was reviewed by Rebecca Bellamy M.

The court was required to determine whether there was "another reason" to revoke the mandatory cancellation of the applicant's visa, considering the principles outlined in Ministerial Direction No. 90. Specifically, the court had to weigh the primary considerations, including the protection of the Australian community, against other relevant factors. The nature and seriousness of the applicant's conduct, including drug trafficking and numerous traffic infringements, were central to this assessment, as was the risk posed to the community should further offending occur.

In its reasoning, the court applied Ministerial Direction No. 90, which mandates that primary considerations generally be given greater weight. The court found the applicant's drug trafficking offence to be objectively serious, noting his engagement with stolen property. His extensive traffic history, encompassing speeding, driving unlicensed, using a mobile phone while driving, drug-driving, and improper vehicle control, demonstrated a significant disregard for road safety and placed other road users at risk. While acknowledging the applicant's efforts to address his drug addiction and the potential for a law-abiding future, the court concluded that the risk of relapse and further traffic offending remained real. The court found that the matters favouring revocation were not sufficiently strong to outweigh the primary considerations of community protection and the cumulative effect of his repeated offending.

Consequently, the court affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.