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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of Vietnam who arrived in Australia as a refugee in 1995, had been convicted of 28 criminal offences between 2008 and 2015, and had been in custody since October 2015. Her visa was cancelled under s 501(3A) of the *Migration Act 1958* (Cth) following convictions in 2018 for possession of methylamphetamine and heroin with intent to sell or supply. The delegate's decision not to revoke the cancellation was made on the basis that there was no "another reason" to do so, as required by s 501CA(4)(b)(ii) of the Act.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by s 501 of the Act, and if not, whether there was "another reason" to revoke the mandatory visa cancellation. The Tribunal was required to consider the applicant's extensive criminal record, including serious drug trafficking offences, and the principles outlined in Ministerial Direction 90, which governs decisions on visa refusal and cancellation under s 501 and revocation of mandatory cancellations under s 501CA.

The Tribunal considered the applicant's serious criminal history, noting convictions for possession of prohibited drugs with intent to sell or supply, involving significant quantities and high purity of methylamphetamine and heroin. The sentencing remarks highlighted the gravity of these offences and their detrimental impact on the community, as well as the limited deterrent effect of previous prison sentences on the applicant. Despite the applicant's long-term drug addiction and the circumstances surrounding her offending, the Tribunal found that the nature and seriousness of her criminal conduct, particularly the repeated drug trafficking offences, were such that even strong countervailing considerations were insufficient to justify revoking the mandatory visa cancellation. The Tribunal applied the principles in Direction 90, which emphasises Australia's sovereign right to determine who may enter or remain in the country and its low tolerance for criminal conduct by non-citizens, while acknowledging that a longer period of residence in Australia may warrant a higher level of tolerance for past offending.

The Tribunal set aside the delegate's decision and substituted a new decision that the mandatory cancellation of the applicant's visa should not be revoked.