Nguyen and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had failed to pass the character test due to a substantial criminal record, having been sentenced to three years and nine months imprisonment for drug trafficking and possession of stolen property. The Administrative Appeals Tribunal (the Tribunal) had jurisdiction to review the decision under section 500(1)(ba) of the Migration Act 1958 (Cth), as the application for review was lodged within the prescribed timeframe.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by section 501(6) of the Act; and second, if he did not pass the character test, whether there was another reason why the mandatory cancellation of his visa should be revoked under section 501CA(4) of the Act, having regard to the considerations outlined in Direction no. 79. The applicant had a substantial criminal record, as defined by section 501(7)(c) of the Act, meaning he did not pass the character test.

In considering whether there was another reason to revoke the mandatory cancellation, the Tribunal was directed by Direction no. 79 to take into account primary and other considerations, with primary considerations generally carrying greater weight. One such primary consideration was the protection of the Australian community from harm, which involved assessing the nature and seriousness of the criminal offending and the risk to the community. The Tribunal also had to consider other factors, such as the best interests of minor children, community expectations, the strength and duration of ties to Australia, and any impediments the applicant might face if returned to Vietnam. The Tribunal heard evidence from the applicant, his mother, wife, and sister, as well as from a psychologist.