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

The Administrative Appeals Tribunal considered the case of Mr. Nguyen and the Minister for Immigration, Citizenship, Multicultural Affairs and Indigenous Australians. The dispute concerned the decision not to revoke the mandatory cancellation of Mr. Nguyen's visa. Mr. Nguyen, a citizen of Vietnam, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record and serving a sentence of imprisonment.

The primary legal issues before the Tribunal were whether Mr. Nguyen passed the character test, and if not, whether there was another reason why the decision to cancel his visa should be revoked, pursuant to subsection 501CA(4) of the Act. This required the Tribunal to consider the criteria outlined in Ministerial Direction No. 99, including the protection of the Australian community and the nature and seriousness of Mr. Nguyen's conduct.

The Tribunal reasoned that while Mr. Nguyen's visa cancellation was initially considered invalid due to a Full Federal Court decision regarding aggregate sentences, subsequent legislative amendments retrospectively validated such cancellations. Applying Ministerial Direction No. 99, the Tribunal found that Mr. Nguyen's criminal conduct, particularly the supply of commercial quantities of methamphetamine, was serious and posed a significant risk to the Australian community. The Tribunal noted the severe harm associated with methylamphetamine use and distribution, as evidenced by reports from the Australian Crime Commission. Despite Mr. Nguyen's de facto relationship with an Australian citizen and their three Australian citizen children, the Tribunal concluded that these factors did not outweigh the risk to the community.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of Mr. Nguyen's visa.