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

The Administrative Appeals Tribunal considered the case of Mr. Nguyen, a citizen of Vietnam, whose visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record, specifically for offences relating to the cultivation of illicit drugs, for which he received a sentence of imprisonment of 12 months or more. The dispute concerned the review of the decision to refuse to revoke this mandatory cancellation under section 501CA(4) of the Act.

The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation of Mr. Nguyen's visa should be revoked, despite him not passing the character test. This involved assessing various primary considerations, including the protection of the Australian community from criminal or other serious conduct, the strength, nature, and duration of Mr. Nguyen's ties to Australia, and the impact of the decision on his family members in Australia.

In its reasoning, the Tribunal acknowledged the seriousness of Mr. Nguyen's offending, particularly the second offence which occurred while he was on conditional liberty and within months of being sentenced for the first. It found that the nature of the offences was similar and arose from similar circumstances, indicating a cumulative effect. However, the Tribunal also considered Mr. Nguyen's personal circumstances, including his remorse, his imprisonment and detention, and the impact on his wife and infant daughter. Despite finding that the primary consideration of protecting the Australian community weighed strongly against revocation, the Tribunal ultimately accepted that Mr. Nguyen had been chastened by his experiences and that the evidence supported a medium to low risk of reoffending. The Tribunal also noted the considerable emotional, practical, and financial consequences for his Australian family.

The Tribunal decided to set aside the decision under review and revoked the mandatory cancellation of Mr. Nguyen's visa.