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

The Administrative Appeals Tribunal reviewed a decision by the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of Vietnam, had been convicted of cultivating a commercial quantity of cannabis and sentenced to 20 months imprisonment, leading to the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth). The applicant sought to have this cancellation revoked, arguing that compelling circumstances existed and that he was not the intended target of the policy.

The primary legal issue before the Tribunal was whether there was "another reason" under section 501CA(4)(b)(ii) of the *Migration Act* to revoke the visa cancellation decision, given that the applicant did not pass the character test due to his criminal conviction. The Tribunal was required to consider the applicant's conduct, the risk to the Australian community, and any other relevant factors that might warrant revocation, standing in the shoes of the original decision-maker but with regard to the circumstances at the time of its own decision.

The Tribunal reasoned that the applicant did not pass the character test due to his conviction and sentence, meaning section 501CA(4)(b)(i) of the Act did not provide a basis for revocation. Therefore, the focus shifted to section 501CA(4)(b)(ii) and the existence of "another reason." The Tribunal considered the applicant's evidence regarding his remorse, his efforts at rehabilitation including counselling and courses, his strong ties to Australia through his marriage and child, and his stated commitment to lawful employment. However, the Tribunal found that the applicant's explanation for his offending, particularly the timing in relation to COVID-19 lockdowns, was unpersuasive. Furthermore, an incident of consuming illicit alcohol while in detention, despite the applicant's claims of change, raised concerns about his judgment and susceptibility to negative influences.

Ultimately, the Tribunal set aside the reviewable decision. It found that while the applicant had demonstrated some remorse and had made efforts towards rehabilitation, the seriousness of his offending, coupled with the incident in detention, meant that the discretion to revoke the cancellation was not enlivened. The Tribunal concluded that there was no "another reason" to revoke the mandatory cancellation decision.