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

This matter concerned an application by Mr. Nguyen, a citizen of Vietnam, to revoke the mandatory cancellation of his Class BS Subclass 801 (Partner) visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs opposed the revocation. The Administrative Appeals Tribunal, represented by Senior Member Dr. Stewart Fenwick, was tasked with determining whether the cancellation should be revoked.

The Tribunal was required to consider whether there was "another reason" why the mandatory visa cancellation should be revoked, applying Ministerial Direction No. 79. This involved assessing the principles of critical importance outlined in the Direction, which relate to protecting the Australian community, the privilege of remaining in Australia, and the community's expectations regarding non-citizens who commit serious crimes. Additionally, the Tribunal had to determine if revoking the visa cancellation was in the best interests of Mr. Nguyen's minor child, considering various factors including the nature of their relationship, the potential for future positive parental involvement, and the impact of separation.

The Tribunal's reasoning focused on balancing the seriousness of Mr. Nguyen's offending – cultivation of a commercial quantity of cannabis, for which he received a significant prison sentence – against countervailing considerations. While acknowledging the importance of protecting the community, the Tribunal also carefully examined the evidence regarding Mr. Nguyen's relationship with his daughter, R. Mr. Nguyen provided detailed statements about his significant involvement in R's upbringing, including acting as her primary caregiver at times, and the negative impact his incarceration had on her. The Tribunal considered the length of time until R turned 18 and Mr. Nguyen's stated intention to study English to improve his parenting.

Ultimately, the Tribunal found that while Mr. Nguyen's offending was a serious matter weighing against revocation, the best interests of his minor child, R, were a significant countervailing consideration. On balance, the Tribunal was persuaded that the best interests of the child were sufficiently compelling to warrant revocation of the visa cancellation. The decision was set aside and substituted with a decision to revoke the mandatory cancellation.