FTDN and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a Vietnamese national who arrived in Australia as a refugee at the age of 15, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) following a significant criminal history. The applicant made submissions requesting the revocation of the cancellation, which were refused, leading to the present application for review before the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by s 501(6) of the Act; and second, if he did not pass the character test, whether there was another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations set out in Direction no. 79. This Direction outlines the framework for assessing the protection of the Australian community, the nature and seriousness of offending, the risk of re-offending, the best interests of minor children, community expectations, and the applicant's ties to Australia and impediments to return.

In its reasoning, the Tribunal considered the applicant's extensive criminal record, which included property, drug, firearm, and violent offences, some resulting in terms of imprisonment. The Tribunal also weighed the applicant's submissions regarding his difficult upbringing, the age of some of his offending, his claimed rehabilitation efforts, prospects of employment, and the impact of his removal on his children. The Respondent contended that the seriousness and frequency of the applicant's offending, including violent acts and re-offending after warnings, weighed heavily against revocation. The Tribunal's decision ultimately affirmed the reviewable decision, indicating that the balance of considerations, particularly the protection of the Australian community, did not favour the revocation of the visa cancellation.