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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of Vietnam, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) after failing to pass the character test due to a conviction for cultivating a commercial quantity of cannabis, for which he received a 14-month prison sentence. The Administrative Appeals Tribunal was required to determine whether there was another reason why the mandatory cancellation of the applicant's visa should be revoked.

The Tribunal was required to consider the applicant's circumstances in light of Ministerial Direction No. 90, which provides a framework for decisions regarding visa refusal, cancellation, and revocation. Specifically, the Tribunal had to assess the nature and seriousness of the applicant's conduct, the risk to the Australian community, and any countervailing considerations. The Direction outlines various factors to be considered, including the types of crimes viewed very seriously by the Australian Government and community, crimes against vulnerable members of the community, the sentence imposed, the frequency of offending, and whether the non-citizen has reoffended.

The Tribunal reasoned that while the applicant's conduct in cultivating cannabis was serious, it was undertaken in a context of significant financial hardship and the need to care for his partner and stepson, who had complex special needs. The applicant had no prior criminal record, pleaded guilty at the earliest opportunity, and had expressed remorse. Furthermore, the Tribunal noted the strong ties the applicant had developed in Australia, including his marriage to an Australian citizen and the birth of their two children, both of whom have autism and developmental delays. The Tribunal concluded that these factors, taken together, constituted another reason to revoke the mandatory visa cancellation. The Tribunal therefore set aside the delegate's decision and substituted a decision to revoke the mandatory cancellation of the applicant's visa.