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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's visa. The applicant, a 38-year-old New Zealand citizen who arrived in Australia at the age of three, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) following a conviction for possession of a prohibited drug with intent to sell or supply, for which he was sentenced to two years and four months imprisonment. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant passed the character test, and if not, whether there was another reason to revoke the cancellation decision.

The Tribunal was tasked with considering the primary and other considerations outlined in Direction 99, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's offending, the risk to the community should he re-offend, the strength, nature, and duration of his ties to Australia, the best interests of his minor children, the expectations of the Australian community, and the extent of impediments if he were removed from Australia. The applicant contended that the delegate's decision was unreasonable and that natural justice had been denied, seeking to have the mandatory cancellation revoked.

In its consideration, the Tribunal noted the Minister's submission that the applicant's offending encompassed drug, dishonesty, violent, property, and traffic offences, and that the protection and expectations of the Australian community weighed heavily against revocation. While the Minister conceded that countervailing considerations such as the best interests of minor children, ties to Australia, and impediments to removal should not be given overwhelming weight, the Tribunal was ultimately required to weigh all relevant factors. The Tribunal's reasoning focused on the application of Direction 99, particularly the emphasis on protecting the Australian community and the seriousness of the applicant's criminal conduct, which included drug trafficking offences.

The Tribunal affirmed the delegate's decision, finding that the applicant did not pass the character test and that there was no other reason to revoke the mandatory cancellation of his visa. The Tribunal was not satisfied that the applicant had demonstrated sufficient grounds to warrant the revocation of the cancellation decision, thereby upholding the Minister's refusal to revoke the cancellation.