Nguyen and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Nguyen against a decision by the Minister for Home Affairs to refuse to revoke a mandatory visa cancellation. The dispute centred on the characterisation of Mr Nguyen's criminal offending and its seriousness in the context of the Minister's obligations under the Migration Act 1958 (Cth). The decision was made by Deputy President S A Forgie.

The court was required to determine whether Mr Nguyen's offending, specifically his involvement in the cultivation of cannabis on two occasions, was sufficiently serious to warrant the refusal to revoke the mandatory visa cancellation. This involved considering various factors outlined in the decision-maker's guidelines, including the nature of the offences, the sentence imposed, the frequency and cumulative effect of offending, and whether false or misleading information had been provided. The court also had to consider the applicant's personal circumstances, including his troubled childhood and psychological assessments, in assessing the seriousness of his conduct.

The Deputy President considered the principles relevant to assessing the seriousness of offending, noting that violent and sexual crimes are viewed very seriously, as are crimes against vulnerable members of the community. While Mr Nguyen's offending involved cannabis cultivation, he acknowledged its repetition and the discovery of a significant number of plants on the second occasion. The Deputy President also had regard to a psychologist's report which suggested Mr Nguyen's offending stemmed from poor decisions made during difficult life circumstances, exacerbated by childhood trauma, rather than psychopathological tendencies. Despite these mitigating factors, the Deputy President found that Mr Nguyen's personal circumstances, including the support of his wife and mother, would not excuse his behaviour. The court also noted that there were no minor children in Australia affected by the decision, and that the Australian community expects non-citizens to obey the law, with a strong expectation that visas will not be revoked for serious offending.

The Deputy President found that the mandatory visa cancellation should not be revoked.