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

This matter concerned an application by the Applicant, a citizen of Vietnam, to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Partner (Residence) (Subclass 801) visa. The visa cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Applicant sought revocation of the cancellation, arguing there was another reason why the cancellation should be revoked, including considerations of non-refoulement obligations and fear of harm. The Administrative Appeals Tribunal (the Tribunal) affirmed the delegate's decision not to revoke the visa cancellation.

The Tribunal was required to determine whether there was another reason why the mandatory visa cancellation should be revoked, considering Ministerial Direction No. 90. This involved assessing the Applicant's character, the risk of harm if returned to Vietnam, and any other relevant factors. The Applicant's criminal history, which included convictions for dishonesty offences, using forged documents, and driving offences, was central to the character assessment. The Tribunal also considered the Applicant's claims regarding his health and the support available to him in Vietnam, as well as his mother's alleged medical conditions and reliance on him in Australia.

In its reasoning, the Tribunal found that the Applicant had not been law-abiding since his arrival in Australia, detailing a significant criminal history spanning multiple years and resulting in custodial sentences. The Tribunal noted that the Applicant's claims regarding his mother's reliance on him were undermined by evidence suggesting she had left Australia. Furthermore, the Tribunal found that the Applicant, being fluent in Vietnamese and English, having visited Vietnam frequently, and having relatives there, did not face substantial impediments to establishing himself or maintaining basic living standards if removed to Vietnam. The Applicant's health claims were not substantiated by expert evidence. The Tribunal concluded that the Applicant's conduct demonstrated a disregard for Australian law and that there was no other reason to revoke the mandatory visa cancellation. The Tribunal affirmed the decision under review.