Nguyen and Minister for Immigration, Citizenship and Multicultural 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, a citizen of Vietnam, had arrived in Australia as an adult and possessed a substantial criminal record due to a money laundering offence. The core dispute revolved around whether the Applicant passed the character test under section 501(6) of the *Migration Act 1958* (Cth) and, if not, whether there was another reason to revoke the cancellation decision under section 501CA(4) of the Act. The Administrative Appeals Tribunal (AAT) was tasked with determining these issues.

The legal issues before the Tribunal were twofold: first, whether the Applicant failed to pass the character test as defined by section 501(6) of the *Migration Act*, specifically by having a substantial criminal record as defined by section 501(7)(c) (a sentence of imprisonment of 12 months or more); and second, if the Applicant did not pass the character test, whether the Tribunal was satisfied that there was another reason to revoke the visa cancellation decision, as permitted by section 501CA(4) of the Act. This second limb required consideration of the factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength, nature, and duration of ties to Australia, the best interests of minor children, community expectations, and the legal consequences of removal.

In its reasoning, the Tribunal considered the Applicant's ties to Australia, particularly through her husband, an Australian citizen who had resided in Australia for approximately 35 years and had custody of their combined children. The Tribunal noted that while the Applicant had not committed family violence, the strength and duration of her ties to Australia, including her husband's commitment and his reliance on her for childcare, were significant factors. The Tribunal also had regard to the fact that the Applicant arrived in Australia as an adult and did not have formative years in the country, which, according to Direction No 99, could lead to less weight being given to the length of residence. The Tribunal ultimately found that there was another reason to revoke the cancellation decision.

The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the cancellation of the Applicant's visa.