Dinh (Migration)

This matter concerned an appeal by Mr Dinh against a decision to cancel his Subclass 444 (Special Category) visa. The Minister had formed the belief that Mr Dinh’s presence in Australia posed a risk to the good order of the Australian community, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The ground for cancellation arose from Mr Dinh's arrest in February 2018 for aggravated assault, where he was reportedly seen carrying a baseball bat while searching for his girlfriend. Although the criminal charge was subsequently withdrawn, the information regarding the arrest and the alleged offence was put to Mr Dinh.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether the discretion to cancel Mr Dinh's visa should be exercised. The Tribunal was required to consider the meaning of "good order of the Australian community" in the context of section 116(1)(e), which involves activities impacting public order or the administration of law. The Tribunal also had to weigh various personal circumstances of Mr Dinh in exercising its discretion, including his lengthy residence in Australia, his family ties, and his personal history.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied, noting that the power to cancel a visa can arise from the possibility of past events creating a risk. However, in exercising its discretion, the Tribunal gave significant weight to Mr Dinh's 18 years of residence in Australia, his Australian citizen children, his parents and siblings residing in Australia, and his stated desire to be a good father. While acknowledging Mr Dinh's past behaviour and the potential risk, the Tribunal concluded that these personal circumstances, particularly his strong family ties and lengthy connection to Australia, weighed against cancellation. The Tribunal also noted that a Subclass 444 visa holder may have an expectation of remaining in Australia, provided they maintain New Zealand citizenship.

Consequently, the Tribunal set aside the decision to cancel Mr Dinh's visa and substituted it with a decision not to cancel. Mr Dinh was cautioned that his visa could be cancelled again if he re-offended or was otherwise deemed a risk to the Australian community.