Do and Minister for Home Affairs (Migration)

This matter concerned an application for review by Ms Do on behalf of Mr Vu, a Vietnamese national, against the Minister for Home Affairs' decision to refuse Mr Vu a visa on character grounds. Mr Vu had previously been sentenced to a term of imprisonment in Australia for cultivating cannabis. The primary dispute revolved around whether Mr Vu satisfied the character test as defined in the Migration Act 1958 (Cth) and, if not, whether the Tribunal should exercise its discretion to grant the visa.

The Tribunal was required to determine two central issues: first, whether Mr Vu passed the character test under section 501(6) of the Act, which includes having a substantial criminal record, defined in part by a sentence of 12 months or more imprisonment; and second, if Mr Vu did not pass the character test, whether the Tribunal should exercise its discretion to not refuse the visa, considering various primary and other considerations.

In its reasoning, the Tribunal considered the protection of the Australian community, noting a low tolerance for visa applicants with criminal conduct, and assessed the nature and seriousness of Mr Vu's offending. It also gave significant weight to the best interests of the minor children affected by the decision, specifically Mr Vu's biological son and his stepdaughter, and the positive parental role Mr Vu was likely to play in their lives. The Tribunal found that the consideration of protection of the Australian community was balanced neutrally, while the best interests of the minor children weighed heavily in favour of granting the visa, leading to the decision to set aside the refusal.