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

The applicant, Ms. Nguyen, challenged the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs' decision not to revoke the mandatory cancellation of her visa. Ms. Nguyen, who arrived in Australia from Vietnam at the age of 19, held a Spouse (Subclass 801) visa which was mandatorily cancelled due to her substantial criminal record, including numerous shoplifting offences and a cannabis cultivation offence. The matter was heard by the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate had erred in exercising their discretion under Direction No 90 not to revoke the mandatory visa cancellation. This required the Court to consider whether the delegate had properly weighed the primary and other considerations, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, and any risk posed to the Australian community. The Court also had to assess the relevance of factors such as the absence of family violence, the best interests of the applicant's minor niece and nephew in Australia, and the expectations of the Australian community.

The Court reasoned that while the applicant's criminal conduct was a significant factor, the delegate had failed to adequately consider the strength, nature, and duration of her ties to Australia. Specifically, the Court found that the delegate had not given sufficient weight to the applicant's long-term residence in Australia, her established community links, and the interests of her adult son and daughter, who were considered part of her ties to Australia. Consequently, the Court determined that the delegate's decision was affected by an error of law. The Court set aside the delegate's decision and substituted its own decision, revoking the mandatory cancellation of the applicant's visa.