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

This matter concerned an application for review of a decision to mandatorily cancel the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test. The applicant argued that there was another reason why the cancellation decision should be revoked. The Administrative Appeals Tribunal was required to consider the primary considerations and other considerations outlined in Ministerial Direction No. 79.

The Tribunal was tasked with determining whether the protection of the Australian community from criminal or other serious conduct weighed in favour of revoking the visa cancellation. This involved assessing the nature and seriousness of the applicant's conduct to date and the risk to the Australian community should the applicant commit further offences. The Tribunal was also required to consider various factors listed in the Direction, including the seriousness of the offence, the sentence imposed, the frequency of offending, and whether the applicant had provided false or misleading information.

In its reasoning, the Tribunal noted that many of the factors listed in the Direction were not relevant to the applicant's history, as he had no prior criminal behaviour or history of false and misleading conduct. The Tribunal found that the applicant was a law-abiding citizen who became involved in a criminal enterprise due to financial pressures and was a low-level operative. While acknowledging that offences involving commercial quantities of prohibited drugs are serious, the Tribunal characterised the applicant's conduct as a "low level example of a serious offence." The Tribunal concluded that the applicant's drug convictions did not weigh heavily against him, particularly as he was a peripheral member of the enterprise and had no criminal history.

The Tribunal set aside the original decision and substituted it with a decision to revoke the mandatory visa cancellation.