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

This matter concerned an appeal by ZFZM against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his Regional Sponsored Migration Scheme (Class RN Subclass 187) visa. The dispute arose because the applicant did not pass the character test, triggering the mandatory cancellation of his visa. However, a subsequent court decision set aside the sentence of imprisonment that had led to the mandatory cancellation. The Administrative Appeals Tribunal (AAT) was required to determine which limbs of the character test applied in these circumstances and whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90 regarding minor offending.

The court's reasoning focused on the scope of the AAT's review powers. It applied the principle that, absent clear statutory indication to the contrary, the AAT can only consider evidence relevant to the question the original decision-maker was bound to decide. This means the AAT should assess the matter as if the original decision-maker were deciding it at the time of the AAT hearing, but without altering the fundamental nature of the decision under review. The court found that the respondent had not demonstrated any legislative intent to expand the scope of administrative merits review to allow the AAT to consider aspects of the character test that were not before the original decision-maker.

The court ultimately held that the AAT could not take into account limbs of the character test that were not considered by the original decision-maker. The decision under review was set aside.