Lam and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Lam, a Vietnamese citizen, for the non-revocation of a mandatory visa cancellation. The cancellation was triggered by a 12-month term of imprisonment, which resulted in Mr Lam failing to pass the character test under section 501(6)(a) of the Migration Act 1958 (Cth). The Minister for Home Affairs argued that Mr Lam posed an unacceptable risk to the Australian community. The Administrative Appeals Tribunal was required to determine whether to affirm or revoke the mandatory cancellation.

The Tribunal was tasked with considering several primary considerations as outlined in the relevant Direction. These included the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal had to assess the nature and seriousness of Mr Lam's conduct, the risk of future offending, and the impact of his conduct on any children.

In its reasoning, the Tribunal noted that the protection of the Australian community from harm due to criminal activity is a fundamental principle. It considered the nature and seriousness of Mr Lam's offending, the sentence imposed, and the risk of re-offending. The Tribunal found that Mr Lam had no parental responsibilities for minor children in Australia, rendering that consideration irrelevant. Furthermore, the Tribunal considered the community's expectation that non-citizens obey Australian laws and that serious offenders should not hold a visa.

The Tribunal concluded that Mr Lam's conduct and the significant risk he posed to the Australian community weighed heavily against revoking the mandatory visa cancellation. Consequently, the Tribunal affirmed the decision to cancel Mr Lam's visa.