Mai and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned the review of a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship and Multicultural Affairs concerning the applicant, a citizen of Vietnam. The applicant had been convicted of serious criminal offences, including cultivating cannabis, theft of electricity, possessing methylamphetamine, and dealing with the proceeds of crime, on two separate occasions in 2017 and 2021. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, applying Ministerial Direction No. 99.

The Tribunal was tasked with considering the primary considerations outlined in Ministerial Direction No. 99, specifically the protection of the Australian community from criminal or other serious conduct, and the best interests of Australian citizen children. The Tribunal had to weigh the seriousness and nature of the applicant's offending, including the fact that he had reoffended after a previous visa cancellation was revoked and a formal warning was issued. The Tribunal also had to consider the applicant's ties to Australia, including his marriage to an Australian citizen and his two Australian-born children, as well as any potential impact of his deportation on them.

In its reasoning, the Tribunal found that the applicant did not pass the character test due to his repeated criminal conduct. The Tribunal noted that the applicant had been given a second chance in 2017 but reoffended approximately two years after his release from prison, despite a formal warning. The Tribunal considered the commercial cultivation of cannabis to be a serious offence with potential harm to the community. It found the applicant's claims of rehabilitation unpersuasive, noting a lack of expert evidence and his inability to resist the influence of adverse peers in the community. The Tribunal concluded that the risk of reoffending was real and that the applicant had demonstrated a repeated disregard for the law and the welfare of the community and his family.

Ultimately, the Tribunal affirmed the Minister's decision not to revoke the mandatory visa cancellation. The Tribunal determined that the primary considerations, particularly the protection of the Australian community, weighed heavily against revocation. The Tribunal found that the applicant had forfeited the privilege of remaining in Australia due to the cumulative effect of his offending and the risk of future harm to the community.