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

Senior Member Griffin QC of the Administrative Appeals Tribunal considered the mandatory cancellation of a Partner (Temporary) (Class UK) and Partner (Permanent) (Class BS) visa held by the applicant, Mr. Nguyen. The cancellation was based on Mr. Nguyen failing to pass the character test due to having a substantial criminal record, as mandated by section 501(3A) of the *Migration Act 1958* (Cth). The dispute centred on whether the Minister's decision to refuse to revoke the cancellation should be affirmed.

The Tribunal was required to determine whether the decision to cancel Mr. Nguyen's visa was justified, having regard to the non-revocation criteria under section 501CA of the *Migration Act 1958* (Cth). This involved assessing the application of Ministerial Direction No. 90, which outlines the primary and other considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation. Key issues included the weight to be given to the protection of the Australian community, the seriousness of the offending and future risk, the best interests of minor children in Australia, and the expectations of the Australian community.

In reaching its decision, the Tribunal applied the principles set out in Ministerial Direction No. 90. It considered the seriousness of Mr. Nguyen's criminal offending and the associated risk to the Australian community. The Tribunal also weighed the best interests of Mr. Nguyen's minor children who are Australian citizens, and the expectations of the Australian community regarding individuals with criminal records. Other considerations, such as the impediments to removal, impact on victims, and Mr. Nguyen's links to the Australian community, were also assessed. The Tribunal found that the reasons for cancellation were significant and outweighed the factors favouring revocation.

The Tribunal affirmed the decision to cancel Mr. Nguyen's visa.