Mai and Minister for Home Affairs (Migration)

This matter concerned the review of a decision by the respondent's delegate not to revoke the mandatory cancellation of the applicant's temporary visa. The applicant, a citizen of Vietnam, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, following his conviction for aggravated burglary-offensive weapon and recklessly causing serious injury. The applicant sought revocation of this cancellation, but the delegate refused. The Administrative Appeals Tribunal was tasked with determining whether there was "another reason" to revoke the cancellation, considering the principles outlined in Ministerial Direction No. 79.

The primary legal issue before the Tribunal was whether the mandatory cancellation of the applicant's visa should be revoked. This required the Tribunal to consider all relevant factors, including those specified as primary considerations in Part C of Ministerial Direction No. 79. These 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. The Tribunal was also guided by the preamble to the Direction, which emphasised Australia's sovereign right to determine who remains in the country and the expectation that non-citizens will be law-abiding.

The Tribunal reasoned that the applicant accepted he did not pass the character test due to his criminal record. Therefore, the focus was on whether countervailing considerations warranted revocation. The Tribunal noted the principles within the Direction, particularly those concerning the seriousness of the offending conduct, the potential harm if repeated, and the duration of the applicant's contribution to the Australian community. The Tribunal was required to weigh these factors against the primary considerations, such as the best interests of the applicant's minor children and the expectations of the Australian community regarding serious criminal offending. The Tribunal ultimately affirmed the delegate's decision not to revoke the cancellation.