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

This matter concerned an application by Mr. Tsang for the revocation of a mandatory visa cancellation made under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, who held a subclass 820 visa, had failed the character test due to drug supply and 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 whether there was another reason why the cancellation should be revoked, considering factors such as remorse, rehabilitation, the non-refoulement obligations owed to Hong Kong, and the application of Direction No. 79.

The Tribunal was tasked with determining the legal issues surrounding the mandatory cancellation of Mr. Tsang's visa. This involved assessing whether any countervailing considerations were sufficient to outweigh the mandatory cancellation, particularly in light of the serious nature of the offending. The Tribunal had to apply the principles outlined in Direction No. 79, which categorised considerations into primary and other considerations, generally requiring primary considerations to be given greater weight. The Tribunal also had to consider the expectations of the Australian community regarding non-citizens who commit serious offences.

In its reasoning, the Tribunal applied the seven principles established for assessing character concerns, noting Australia's sovereign right to determine who remains in the country and the community's expectation that serious offenders will have their visas cancelled. The Tribunal found that while Mr. Tsang expressed remorse for his actions, the serious nature of drug supply offences weighed moderately in favour of non-revocation. The Tribunal also considered the expectations of the Australian community, referencing *FYBR v Minister for Home Affairs* which clarified that such expectations are deemed rather than empirically determined. The Tribunal concluded that the serious nature of the offending was a significant factor against revocation.