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

This matter concerned an application for review of a delegate's decision not to revoke a mandatory visa cancellation. The applicant, a citizen of Vietnam, had been granted a Spouse (Class 801) visa in 2008. He had a significant criminal history, including convictions for conspiracy to import border-controlled drugs, attempting to possess marketable quantities of imported border-controlled drugs, making false statements in relation to his visa and passport applications, making a false statutory declaration, trafficking drugs of dependence, and dealing with property suspected of being proceeds of crime. These convictions resulted in custodial sentences, including a sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years imposed in 2011, and a sentence of 4 years and 6 months imprisonment imposed in 2017. Consequently, the applicant's visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) on 9 May 2019, due to his substantial criminal record and being subject to a full-time custodial sentence. The applicant subsequently requested revocation of this cancellation, which was refused by the delegate on 13 April 2021. The applicant then sought review of this refusal by the Tribunal.

The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, considering the applicant's representations and the relevant considerations outlined in Direction 90. The primary considerations 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. Other considerations included international non-refoulement obligations and the applicant's links to the Australian community. The applicant provided evidence detailing his difficult childhood in Vietnam, his struggles with language and support upon arrival in Australia, his marriage to an Australian citizen, his involvement in drug trafficking due to gambling debts and his wife's imprisonment, his completion of rehabilitative programs in prison, and his desire to be a role model for his Australian citizen son.

In its reasoning, the Tribunal acknowledged Australia's sovereign right to determine the entry and remaining of non-citizens, particularly those of character concern. It noted the community's expectation that individuals engaging in serious criminal conduct should expect to be denied or forfeit the privilege of remaining in Australia. While recognising that a longer period of residence in Australia might warrant a higher level of tolerance for past conduct, the Tribunal found that the applicant's criminal offending was substantial and serious. Despite the applicant's expressed remorse, his efforts at rehabilitation, and his family ties in Australia, the Tribunal concluded that these countervailing considerations were insufficient to justify revoking the mandatory cancellation. The Tribunal affirmed the delegate's decision.