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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of Vietnam, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) after being convicted of cultivating a prohibited plant with intent to sell or supply, for which he received a sentence of 22 months imprisonment, and fraudulent appropriation of power, for which he received a concurrent six-month sentence. As a result of the cultivation offence, he was also declared a drug trafficker. The Applicant subsequently sought revocation of the visa cancellation under section 501CA of the Act.

The primary legal issues before the court were whether the Applicant passed the character test, and if not, whether there was "another reason" why the mandatory cancellation of his visa should be revoked. This required the court to consider the Applicant's offending conduct in light of Ministerial Direction 90, which provides a framework for decision-makers assessing such requests. The court also considered whether the Applicant had an authorised recipient for the purposes of section 494D(1) of the Act, and the role of the Tribunal in scrutinising administrative procedures.

The court reasoned that the Applicant did not pass the character test due to his substantial criminal record and the fact he was serving a sentence of imprisonment. In assessing whether there was "another reason" to revoke the cancellation, the court considered various factors outlined in Direction 90. While the Applicant's offending was not violent or sexual, and his convictions arose from a single criminal endeavour without a trend of increasing seriousness, the court found the offences to be serious. Furthermore, the Applicant had limited links to the Australian community and was assessed as posing a moderate to medium risk of engaging in further serious or criminal conduct. The court also noted that the evidence regarding the notification of the decision under section 501G(1) was unclear.

Ultimately, the court affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The court found that the Applicant did not pass the character test and that there was no "another reason" to revoke the mandatory cancellation, considering the seriousness of his offending, his risk of reoffending, and his limited ties to Australia.