Dinh and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 747

Dinh and Minister for Immigration and Citizenship (Migration) [2025] ARTA 747 (13 June 2025)
Applicant/s:  Chien Xuan Dinh
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/2957

Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:13 June 2025

Decision: The Tribunal affirms the decision under review.

....................[SGD]....................................................
Deputy President P Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Five Year Resident Return (Class BB) (Subclass 155) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – the seriousness of drug importation and trafficking – the decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 18 May 2022, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] G-Documents, G8 51-7.
The Applicant sought revocation of the cancellation decision on 23 May 2022 and made representations in support of revocation.[3]
[3] Ibid G12 78-84.
On 31 March 2025, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The Applicant applied to the Tribunal for review of the non-revocation decision on 3 April 2025.[5]The Tribunal heard the matter on 10 June 2025.
[4] Ibid G4 28.
[5] Ibid G2 5-17.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Dinh and Minister for Immigration and Citizenship (Migration) [2025] ARTA 747
Case: [2025] ARTA 747
Decision Date: 13 June 2025

CaseChat Overview and Summary

The case involves a Vietnamese citizen who has been in Australia since 1997. The Applicant’s visa was cancelled under s 501CA of the Migration Act 1958 (Cth) due to his failure to meet the character test, stemming from his criminal history and drug-related activities. The matter was heard by the Administrative Appeals Tribunal (AAT), where the Applicant sought to have the mandatory cancellation of his visa revoked. The primary legal issue was whether there were sufficient grounds to revoke the mandatory visa cancellation, considering the nature and seriousness of the Applicant’s criminal conduct.

The AAT assessed the case by examining the principles outlined in Direction No. 110, which provides guidance on visa refusal and cancellation decisions. The Tribunal gave particular weight to the principle that Australia has a sovereign right to determine entry and residence based on character and the safety of the Australian community. The Applicant’s extensive criminal history, including drug importation and trafficking, was considered against the backdrop of these principles. The Tribunal found that the Applicant’s conduct, marked by its seriousness and frequency, warranted the continued application of the mandatory cancellation.

In reaching its decision, the Tribunal concluded that despite the Applicant’s representations, the weight of his criminal history and the risk he posed to the Australian community were too significant to warrant revocation of the visa cancellation. The Tribunal found that the seriousness of the Applicant’s criminal conduct, particularly his involvement in drug trafficking, outweighed any mitigating factors presented. As a result, the Tribunal affirmed the Minister's decision not to revoke the mandatory visa cancellation.

No further orders were made as the Tribunal upheld the decision to maintain the visa cancellation in place.

Orders

Orders of the court

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Background

Background to the litigation

Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[6] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[7] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[8] [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[7] [2021] HCA 41.[8] Ibid [14].BACKGROUND The Applicant is a citizen of Vietnam. He married in 1995 and came to Australia with his wife and son in July 1997 when he was 24 years old. They settled in Brisbane and had a second child, a daughter, in April 1998. The Applicant’s parents have died but he has five siblings who live in Vietnam. The Applicant moved from Brisbane to Melbourne with his wife and two children in 2006, but he broke up with his first wife in 2008 and they are divorced. The Applicant’s wife and children returned to Brisbane in 2008 and he relocated to Sydney and lived with his second wife. His relationship with his second wife ended in 2024 after he was released from prison and transferred into immigration detention where he remains. Soon after arriving in Australia, the Applicant became a heroin addict and he has struggled with addiction and a life of crime up until his imprisonment in 2018.Direction 110 The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[9] [9] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘The Direction’). For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) The safety of the Australian Community is the highest priority of the Australian Government. (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3) As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i)a written notice that sets out the original decision; and(ii)particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(Emphasis in original) Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.ISSUES BEFORE THE TRIBUNAL The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[6] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane,[7] ‘deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[8] [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [24], [36].[7] [2021] HCA 41.[8] Ibid [14].BACKGROUND

Ratio Decidendi

Legal Principle Established

The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[12]CONSIDERATION[12] Ibid 7(2).Protection of the Australian community – 8.1 of Direction 110 When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[13] As required by paragraph 8.1(2) of the Direction, I give consideration below to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[13] Ibid 8.1(1).The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110 When considering the nature and seriousness of the Applicant’s conduct, I take into account his criminal activity and other serious conduct. The Applicant has served three custodial sentences for criminal offending. The first was imposed by the Brisbane District Court on 17 June 1999 for an assault occasioning bodily harm in January 1999 for which he received a sentence of nine months’ imprisonment suspended after serving three months.[14] The second custodial sentence was imposed by the Brisbane Supreme Court on 17 April 2003 for importing heroin for which he was sentenced to 3 years imprisonment to be released after serving eight months.[15] The third custodial sentence was imposed by the Melbourne County Court on 15 October 2021 for trafficking in a commercial quantity of methylamphetamine and knowingly dealing with proceeds of crime for which he received a total sentence of six years imprisonment.[16] In addition to these custodial sentences there were numerous other offences related to drugs, theft, violence and driving. There is a total of 33 offences committed between 1999 and 2018.[14] G-Documents, G6 47.[15] Ibid.[16] Ibid G9 70-1. When being sentenced in 2003 for the heroin importation the sentencing judge said:[17]You only arrived in Australia in 1997, but by 1999 you had been convicted of an offence of assault occasioning bodily harm. I hope that your offending that commenced with the assault occasioning bodily harm and has continued since that time, but particularly with this importation, is the end of your offending and that you use this time in prison to work out what you’re going to do in the future. What happens, Mr Dinh, is that if you continue to offend you will be given longer and longer sentences of imprisonment.Since you have been in prison on remand you have undergone two substance abuse programs, an anger management course, and commenced subjects for a business course. I hope you continue with applying yourself in that way.I am told that you have employment as a shop assistant to go on your release and I hope that you make the most of that opportunity.[17] Ibid G11 76.