Nguyen and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr. Nguyen against a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of his visa. Mr. Nguyen had arrived in Australia as a refugee at the age of 12 and had a history of drug use and related criminal offending. The dispute centred on whether the discretion to revoke the visa cancellation should have been exercised, considering various factors outlined in Direction No. 65.

The court was required to determine the weight to be given to several primary considerations under Direction No. 65, including the protection of the Australian community from criminal conduct, the nature and seriousness of Mr. Nguyen's offending, the risk of re-offending, the best interests of any minor children (though not explicitly detailed in the provided text, it is listed as a consideration), and the expectations of the Australian community. Additionally, the court had to consider other factors such as the strength, nature, and duration of Mr. Nguyen's ties to Australia, and any impediments he might face if removed from Australia.

The court reasoned that while Mr. Nguyen had lived in Australia since childhood and had recently reconciled with his family, providing a basis for strong ties to the country, the significance of his early arrival was diminished by his offending soon after. However, the court found that Mr. Nguyen's personal history, including childhood trauma and subsequent drug addiction, coupled with his engagement in counselling and efforts towards rehabilitation, presented compelling reasons for revocation. Weighing these factors against the need to protect the community and community expectations, the court concluded that Mr. Nguyen's ties to Australia, his health issues, the difficulties he would face if removed, and the impact on his family collectively outweighed the reasons for maintaining the visa cancellation. The court determined that the risk of Mr. Nguyen re-offending was acceptable.

Consequently, the court set aside the reviewable decision of 12 July 2018, which was the decision not to revoke the cancellation of Mr. Nguyen's visa. In substitution, the court decided that the mandatory cancellation of Mr. Nguyen's visa, made on 9 June 2017, was revoked.