ZCNR and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke a mandatory visa cancellation. The applicant, ZCNR, had failed to pass the character test under section 501 of the *Migration Act 1958* (Cth) due to a substantial criminal record. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the discretion under section 501CA(4) of the Act should be exercised to revoke the mandatory visa cancellation.

The Tribunal was tasked with determining two primary issues: firstly, whether the applicant passed the character test as defined in section 501(6) and (7) of the Act, and secondly, whether there was another reason why the mandatory visa cancellation decision should be revoked. In considering these issues, the Tribunal was bound to apply Ministerial Direction 65, which outlines the considerations for revoking a mandatory visa cancellation. This included giving appropriate weight to information from independent and authoritative sources, and considering both primary and other considerations, with primary considerations generally carrying greater weight.

The Tribunal's reasoning focused on the nature and seriousness of the applicant's conduct, as well as the risk to the Australian community. The applicant had a criminal record including drug possession and supply offences, and an incident involving the manufacture of a prohibited drug. The Tribunal noted that the applicant did not dispute these convictions. The Tribunal also considered the provisions of Ministerial Direction 65, specifically paragraph 8(2) regarding the weight to be given to independent evidence and paragraph 8(3) concerning how primary and other considerations may weigh for or against cancellation. The Tribunal's decision was to set aside the delegate's decision and substitute its own decision to revoke the mandatory visa cancellation.