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

The matter before the Administrative Appeals Tribunal (AAT) concerned the non-revocation of a mandatory cancellation of the Applicant's Partner (Residence) (Class BS) (Subclass 801) visa. The visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test, having received a sentence of imprisonment exceeding twelve months. The Applicant sought to have this cancellation revoked under section 501CA of the Act, but the Respondent decided not to revoke the cancellation. The Applicant then applied to the Tribunal for a review of this decision.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, as required by section 501CA(4) of the Migration Act. This required the Tribunal to consider and apply Ministerial Direction No 90, which outlines the principles and considerations relevant to such decisions, including the protection of the Australian community, the non-citizen's ties to Australia, and the potential consequences of removal. The Tribunal also had to consider the evidence presented regarding the Applicant's character, his criminal offending, and any mitigating factors or rehabilitation efforts.

The Tribunal's reasoning focused on the principles set out in Ministerial Direction No 90, particularly the expectation that Australia has a sovereign right to determine who remains in the country and that non-citizens who engage in serious criminal conduct should expect to forfeit their privilege to remain. While acknowledging the Applicant's family ties in Australia and the evidence from his cousin, partner, and aunt suggesting he had learned his lesson and intended to reform, the Tribunal found these countervailing considerations were insufficient to justify revoking the mandatory cancellation. The Tribunal noted that the Applicant had completed only a short barista course while incarcerated and that the nature of his drug-related and drink-driving offences, leading to a sentence exceeding twelve months, weighed heavily against him. The Tribunal affirmed the Respondent's decision not to revoke the mandatory cancellation.