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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's temporary student visa. The Applicant, a citizen of Vietnam, had been convicted of cultivating a prohibited drug with intent to sell or supply, leading to the cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant accepted he did not pass the character test but argued there was "another reason" why the cancellation should be revoked, as permitted by section 501CA(4)(b)(ii) of the Act. The Administrative Appeals Tribunal was required to determine if such a reason existed, applying Ministerial Direction 90.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether there was "another reason" to revoke the mandatory visa cancellation. This required consideration of the factors outlined in Ministerial Direction 90, including the best interests of any minor children affected by the decision. The Applicant had not made written submissions prior to the hearing and only disclosed the existence of relevant minor children during the hearing itself.

The Tribunal found that the Applicant had not passed the character test due to his criminal conviction. Crucially, the Applicant had not identified any relevant minor children in his initial representations or in the specific section of the revocation request form designated for such information. The Tribunal noted that the Applicant's visa was due to expire in approximately eight months. Applying the principles of Ministerial Direction 90, particularly regarding the consideration of minor children, the Tribunal concluded that the Applicant had failed to establish that there was "another reason" to revoke the mandatory cancellation of his visa. The Tribunal affirmed the delegate's decision.