Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an appeal by Mr Nguyen against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his visa. The cancellation was based on Mr Nguyen failing to pass the character test. The Administrative Appeals Tribunal had affirmed the Minister's decision, and Mr Nguyen sought judicial review of that decision in the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law in its application of Ministerial Direction No. 99 when considering whether there was "another reason" why Mr Nguyen's visa cancellation should be revoked. Specifically, the Court had to determine if the Tribunal had adequately considered all the relevant factors outlined in the Direction, including the protection of the Australian community, the nature and seriousness of Mr Nguyen's conduct, the risk of reoffending, the strength and duration of his ties to Australia, and the best interests of his minor children.

Deputy Justice Owen P found that the Tribunal had failed to properly consider and give sufficient weight to several of the factors enumerated in Ministerial Direction No. 99. The Tribunal's assessment of the risk of reoffending and the impact of cancellation on Mr Nguyen's minor children was found to be inadequate. Furthermore, the Tribunal did not sufficiently engage with the community expectations regarding the protection of the Australian community from individuals who fail the character test. Consequently, the Court concluded that the Tribunal's decision was affected by an error of law.

The Court set aside the decision of the Administrative Appeals Tribunal and substituted its own decision. The Court revoked the mandatory visa cancellation under section 501(3A) of the *Migration Act 1958* (Cth), finding that there was another reason why the visa should not be cancelled.