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

This matter concerned an application for review by Mr. Ngo, a citizen of the French Republic, of a delegate's decision to refuse to revoke the mandatory cancellation of his visa. The visa had been mandatorily cancelled under the Act due to Mr. Ngo having a "substantial criminal record." The Administrative Appeals Tribunal (the Tribunal) was tasked with making a fresh decision on whether to revoke this cancellation.

The Tribunal was required to determine two questions. First, whether Mr. Ngo failed the character test as defined in the Act. If he did not fail the character test, the cancellation would be set aside. If he did fail the character test, the Tribunal then had to consider whether there was "another reason" to revoke the cancellation, evaluating the factors for and against revocation. In this assessment, the Tribunal was bound by Ministerial Direction No. 90, which outlines primary and other considerations to be taken into account.

In its reasoning, the Tribunal noted that the decision-maker was not confined to the considerations stipulated in the Direction but must properly address any relevant claim consistent with the purposes of the Act. Regarding the primary consideration of protecting the Australian community, the Tribunal found that Mr. Ngo's offending history, which included convictions for driving offences, failing to comply with bail agreements, and drug trafficking offences for which he received a significant custodial sentence, did not involve violent or sexual crimes against women or children. The Tribunal also considered the best interests of Mr. Ngo's two minor daughters. It found insufficient clear evidence regarding the whereabouts of his elder daughter, D1, and noted Mr. Ngo's limited parental role in her life. For his younger daughter, D2, the Tribunal accepted evidence that Mr. Ngo had been more involved and maintained contact, and that his deportation would negatively impact D2's ability to maintain a relationship with him.

The Tribunal ultimately affirmed the decision to refuse to revoke the mandatory cancellation of Mr. Ngo's visa.