Nguyen (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the cancellation of Mr. Nguyen's Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The dispute arose after Mr. Nguyen was convicted of criminal offences and sentenced to imprisonment. The Minister had considered cancelling his visa under section 116(1)(g) of the Migration Act 1958 (Cth) due to these convictions.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Act, as prescribed by regulation 2.43(1)(oa), was made out. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was indeed established, as Mr. Nguyen had been convicted of an offence against a law of the Commonwealth or a State. However, the cancellation was not mandatory under section 116(3) of the Act. In exercising its discretion, the Tribunal considered various factors, including Mr. Nguyen's compelling need to remain in Australia to care for his Australian citizen wife and two young children, the fact that he had established a family unit, and evidence suggesting a low risk of reoffending and his return to work after his release. The Tribunal also took into account the potential financial and emotional hardship that cancellation would cause to his family, particularly his wife's mental health and the best interests of his Australian citizen children.

Ultimately, the Tribunal concluded that, when considering all the circumstances individually and cumulatively, the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's Subclass 820 visa.