Nguyen and Minister for Immigration and Border Protection (Migration)

This matter concerned the mandatory cancellation of the applicant's visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant, who had arrived in Australia in 2011 and subsequently obtained a visa, was convicted of trafficking a commercial quantity of heroin and sentenced to five years and six months imprisonment with a non-parole period of three years and six months. This conviction resulted in the applicant failing the character test and the mandatory cancellation of his visa. The applicant sought to have this cancellation revoked under section 501CA(4)(b) of the Act, arguing there was another reason to do so. The decision was made by Senior Member R Cameron of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, as contemplated by section 501CA(4)(b) of the Migration Act. This required the Tribunal to consider the factors outlined in paragraph 13(2) of the Ministerial Direction, which include the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to assess the nature and seriousness of the applicant's conduct, the sentence imposed by the courts, and the risk to the community should further offences be committed.

In reaching its decision, the Tribunal considered the seriousness of the applicant's offending, noting that trafficking a commercial quantity of heroin was a grave offence, as acknowledged by the courts. The Tribunal also had regard to the sentence imposed. While acknowledging the applicant's ties to Australia, including his son who resided there, and his difficult upbringing in Vietnam, the Tribunal found that these factors were outweighed by the seriousness of the criminal conduct and the need to protect the Australian community. The Tribunal was not satisfied that there was another reason to revoke the mandatory cancellation.

Consequently, the Tribunal affirmed the reviewable decision, meaning the mandatory cancellation of the applicant's visa remained in effect.