Nguyen (Migration)

This matter concerned an appeal by Mr. Nguyen against a decision to cancel his Bridging A (Class WA) visa. The appeal was heard by a Member of the Tribunal. The dispute arose following Mr. Nguyen's criminal convictions and imprisonment, which triggered a ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether, despite the existence of a ground for cancellation, it should exercise its discretion not to cancel Mr. Nguyen's visa. This involved considering the purpose of his travel and stay in Australia, his history of study, work, and relationships, and his current circumstances.

The Tribunal acknowledged that the ground for cancellation under s 116(1)(g) existed but was not a mandatory cancellation. In exercising its discretion, the Tribunal had regard to various factors, including those raised by the applicant and outlined in the Department's Procedures Advice Manual. While the Tribunal found the applicant's explanation for not completing his Master's degree unconvincing, it noted that the applicant was the primary carer of a young Australian citizen child with possible developmental delays, and his current partner, who was a business owner, was experiencing financial difficulties due to the coronavirus pandemic. The Tribunal also considered the applicant's previous relationship breakdown and the withdrawal of sponsorship for an earlier partner visa application.

Ultimately, the Tribunal concluded that, when considering all the circumstances as a whole, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's Subclass 010 (Bridging A) visa, noting that this decision was reached marginally in his favour.