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

This matter concerned an appeal by Mr Nguyen, a citizen of Vietnam, against the mandatory cancellation of his Class BB Subclass 155 Resident Return (Permanent) visa. The cancellation was based on Mr Nguyen failing to pass the character test due to his extensive criminal history, including convictions for drug trafficking and other offences. The Administrative Appeals Tribunal was required to determine whether there was "another reason" why the visa cancellation should be revoked.

The primary legal issue before the Tribunal was whether Mr Nguyen had established "another reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to justify the revocation of his visa cancellation. In considering this, the Tribunal was bound by Direction No. 79, which mandates the consideration of specific factors, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, and the risk of re-offending.

The Tribunal found that Mr Nguyen failed the character test due to his serious and persistent offending, which included drug trafficking and crimes of violence, spanning from 1994 to 2018. Despite a previous warning in 2013 regarding his migration status, Mr Nguyen continued to re-offend, demonstrating a disregard for court orders. While acknowledging Mr Nguyen's engagement with mental health services and his claim of rehabilitation, the Tribunal concluded that these factors did not constitute "another reason" sufficient to revoke the mandatory visa cancellation. The Tribunal determined that the risk to the Australian community and the cumulative effect of his repeated offending outweighed any mitigating circumstances.

Consequently, the Tribunal decided to affirm the original decision to cancel Mr Nguyen's visa, finding that the decision was correct in law and the preferable exercise of discretion.