Nguyen and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr. Nguyen against the Minister for Home Affairs' refusal to grant him a residence return visa. The dispute centred on whether Mr. Nguyen satisfied the character test under the Migration Act 1958 (Cth). The case was heard by Senior Member D. J. Morris of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether Mr. Nguyen passed the character test, which involved assessing his criminal history, including drug offences and other convictions, and determining the risk of him engaging in further criminal conduct in Australia. The Tribunal also had to consider the impact of misleading information provided in a previous passport application and whether to exercise the discretion under section 501(1) of the Act to refuse a visa. The Tribunal was required to consider the primary considerations, other considerations, and any other relevant matters in its assessment.

The Tribunal considered evidence regarding Mr. Nguyen's past offending, including drug-related offences in 1997, 2001, and 2010, and his explanations for these actions. It also took into account his immigration history, including his arrival in Australia, marriage, divorce, and the circumstances surrounding the erroneous grant of an Australian passport. Crucially, the Tribunal weighed professional clinical opinions regarding the low risk of Mr. Nguyen re-offending and the significant period he had resided in Australia. Applying these considerations, the Tribunal concluded that the discretion to refuse the visa under section 501(1) of the Act should not be exercised.

Consequently, the Tribunal decided to set aside the delegate's decision of 25 September 2018 and remit the matter to the Respondent with a direction that Mr. Nguyen's application for a Return (Residence) (Class BB) visa not be refused under section 501 of the Migration Act 1958.