Nguyen (Migration)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to cancel Mr Manh Tuan Nguyen's Subclass 030 (Bridging C) visa. Mr Nguyen, a Vietnamese national, had been granted a Bridging C visa in conjunction with his application for a permanent partner visa (Subclass 801), sponsored by his Australian citizen wife. He had previously been granted a Subclass 820 partner visa. Mr Nguyen had been convicted of cultivating a commercial quantity of narcotic plants and dealing with the suspected proceeds of crime, for which he received a sentence of 11 months imprisonment. The delegate cancelled his Bridging C visa on the basis of these criminal convictions.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel Mr Nguyen's Bridging C visa was correct. This involved determining if the ground for cancellation under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(oa) of the Migration Regulations 1994 was made out, and if so, whether the discretion to cancel the visa should have been exercised in all the circumstances. The Tribunal was also required to consider the impact of a separate decision that had set aside the cancellation of Mr Nguyen's Subclass 820 partner visa.

The Tribunal reasoned that while the ground for cancellation was established due to Mr Nguyen's criminal convictions, the cancellation of his Bridging C visa was not mandatory. The Tribunal then considered the exercise of discretion, noting that the cancellation of his Subclass 820 partner visa had been set aside and his application for the permanent Subclass 801 visa was still pending. The Tribunal found that Mr Nguyen had a compelling need to remain in Australia to reside permanently with his wife and children, which weighed heavily against cancellation. While acknowledging a significant period of unlawful status after his student visa ceased, the Tribunal ultimately concluded that there was no utility or interest of justice in cancelling the Bridging C visa.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr Nguyen's Bridging C visa.