Diep and Minister for Immigration and Border Protection (Migration)

This matter concerned an application to revoke the mandatory cancellation of the applicant's visa, which had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to the applicant failing the character test. The applicant, who arrived in Australia in 1991, had been convicted in 2013 of importing a marketable quantity of border-controlled drugs and sentenced to seven years imprisonment with a non-parole period of four years. The decision was made by Dr L Bygrave, a Member of the Tribunal.

The Tribunal was required to determine whether to revoke the mandatory visa cancellation, considering the protection of the Australian community, the best interests of minor grandchildren, the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, and the extent of impediments if removed. The Tribunal also considered whether international non-refoulement obligations were relevant, but concluded they were not, as the applicant was no longer a refugee.

In its reasoning, the Tribunal found that the protection of the Australian community weighed against revoking the cancellation. While acknowledging that the best interests of minor grandchildren supported revocation, it placed very limited weight on this factor due to the applicant's prolonged absence and the presence of other parental figures in the grandchildren's lives. The Tribunal noted that the applicant's ties to Australia, including his children and grandchildren, weighed in his favour. However, it also considered the impediments to his removal, such as his age, health, and financial situation, and his stated intention to stay at a temple in Vietnam. Ultimately, on balance, the Tribunal found that the protection of the Australian community was the most significant consideration.

The Tribunal affirmed the decision to refuse to revoke the mandatory visa cancellation.