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

This matter concerned an application for review by Mr Dinh of the delegate's decision not to revoke the mandatory cancellation of his Five Year Resident Return (Class BB) (Subclass 155) visa. Mr Dinh's visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test due to having a substantial criminal record and was serving a full-time custodial sentence for an offence against an Australian State law. The Tribunal, in conducting its review, was required to determine whether it was satisfied that Mr Dinh passed the character test or that there was another reason why the visa cancellation decision should be revoked.

The legal issues before the Tribunal were whether Mr Dinh passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of his visa. In considering these issues, the Tribunal was required to apply Direction 79, which outlines the considerations for visa refusal and cancellation under s 501 and the revocation of mandatory cancellations under s 501CA. The primary considerations under Direction 79 included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. Other considerations included the strength, nature, and duration of ties to Australia and the extent of impediments if removed.

The Tribunal reasoned that Mr Dinh's conduct, which included drug trafficking and stalking a minor, was serious and ought not to be characterised as being at the lower end of the seriousness spectrum, despite the absence of physical violence. The Tribunal considered that the drug-related offending was particularly serious. Applying the principles in Direction 79, the Tribunal found that the protection of the Australian community from criminal conduct was a significant consideration. While acknowledging Mr Dinh's submissions regarding his ties to the community and employability, the Tribunal was not satisfied that these factors, or any other considerations, constituted another reason to revoke the mandatory cancellation of his visa.

Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of Mr Dinh's visa.