ZKFQ and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister for Home Affairs to mandatorily cancel the Applicant's Class XA Subclass 866 Protection visa. The Applicant, a national of Iran, had been granted the visa in 2011 based on a well-founded fear of persecution in his home country, specifically the risk of the death penalty due to intemperate remarks made about the supreme leader and Islam. The cancellation was triggered by the Applicant supplying a commercial quantity of a prohibited drug, resulting in a sentence of imprisonment of 12 months or more, thus failing the character test under section 501(3A) of the *Migration Act 1958* (Cth).

The central legal issue before the Tribunal was whether the mandatory cancellation of the Applicant's visa should be revoked under section 501CA of the *Migration Act*. This required the Tribunal to be satisfied that either the Applicant passed the character test, or that there was another reason why the cancellation should be revoked. In determining this, the Tribunal was bound to consider Ministerial Direction No 79, which outlines various factors to be weighed, including non-refoulement obligations, the strength and duration of ties to Australia, the impact on Australian business interests, the impact on the community and victims, and the extent of impediments if removed from Australia.

The Tribunal reasoned that while the Applicant had failed the character test due to his criminal offending, there were significant mitigating factors. Crucially, the Applicant's refugee status and the strong likelihood of facing the death penalty upon return to Iran engaged Australia's non-refoulement obligations. The Tribunal also considered the Applicant's cooperation with law enforcement after his arrest and the best interests of his minor children in Australia. Weighing these factors against the seriousness of the offending, the Tribunal found that the Applicant posed no future risk of offending in Australia and that the mitigating factors, particularly the risk of severe punishment or death in Iran, far outweighed the considerations favouring cancellation.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation. In substitution, the Tribunal decided to revoke the mandatory cancellation of the Applicant's Class XA Subclass 866 Protection visa.