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

This matter concerned an application by DVDP, a citizen of Vietnam, to revoke the mandatory cancellation of his Subclass 155 (Five Year Resident Return) visa. The visa had been mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because DVDP did not pass the character test due to having a substantial criminal record, specifically for reckless wounding in company and affray. The delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs affirmed the decision not to revoke the cancellation. The Administrative Appeals Tribunal was required to review this decision.

The Tribunal was tasked with determining whether there was "another reason" why the original mandatory cancellation decision should be revoked, as contemplated by s 501CA(4) of the Act. This determination was to be made in accordance with Direction No. 79, which outlines the framework and considerations for such decisions. The primary considerations under Direction No. 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.

In its reasoning, the Tribunal considered the nature and seriousness of DVDP's conduct. The Tribunal noted that DVDP's offences involved violence against a vulnerable victim and that the stabbing, while reckless as to the resulting wound, was an intended action to make contact. The Tribunal found that DVDP plainly intended to stab the victim, albeit with some last-moment hesitation. The Tribunal also considered other relevant considerations, such as international non-refoulement obligations, the strength of ties to Australia, the impact on victims, and the extent of impediments if removed. However, the Tribunal ultimately found that the primary consideration of protecting the Australian community from criminal conduct weighed heavily against revocation.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of DVDP's visa.