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

This matter concerned an application by Mr. Nguyen (the Applicant) to revoke the mandatory cancellation of his visa. The Applicant, a citizen of Vietnam, had failed to pass the character test due to a substantial criminal record, specifically convictions for cultivating prohibited plants in 2015 and knowingly taking part in the cultivation of a large commercial quantity of cannabis in 2022. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The case was heard by The Hon. Dennis Cowdroy AO KC, Deputy President.

The central legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the Applicant's visa should be revoked, as provided for by subparagraph 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the Tribunal to consider various factors outlined in Ministerial Direction No. 90, including the nature and seriousness of the offending conduct, the risk of reoffending, the protection of the Australian community, the best interests of any minor child in Australia, community expectations, the strength of ties to Australia, and impediments to removal.

The Tribunal's reasoning focused on the assessment of the primary considerations under Ministerial Direction No. 90. While the protection of the Australian community from criminal conduct was considered, the Tribunal found it not relevant in this specific instance. A significant portion of the assessment was dedicated to the best interests of the Applicant's alleged three-year-old daughter. Despite the Applicant not being listed on the child's birth certificate and lacking DNA evidence of paternity, the Tribunal gave weight to the evidence presented by the Applicant's partner and younger brother, who testified to the Applicant's close relationship with his mother and siblings in Australia, and his remorse for his offences. The Tribunal also considered the partner's statement that she had sought to add the Applicant's name to the birth certificate but was unable to do so due to his custody status at the time.

Ultimately, the Tribunal was satisfied that there was another reason why the mandatory cancellation of the Applicant's visa should be revoked. Consequently, the Tribunal set aside the original decision and, in substitution, revoked the mandatory cancellation of the Applicant's visa.