Nguyen (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging E (Class WE) visa of Mr Nguyen. The dispute arose from Mr Nguyen's criminal conduct, specifically a drug-related offence for which he was convicted and sentenced. The Tribunal was tasked with determining whether the cancellation of his visa was appropriate.

The legal issues before the Tribunal included whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. In considering the exercise of this discretion, the Tribunal was required to comply with Direction No. 63, which mandates the consideration of specified primary and secondary factors, and dictates how these factors should be weighed.

The Tribunal reasoned that while the government has a low tolerance for criminal behaviour by non-citizens, and this was a primary consideration, the applicant had been convicted of only one offence after pleading guilty to supplying an indictable quantity of cannabis. The Tribunal noted the sentencing judge's findings that Mr Nguyen had no prior convictions, had spent seven months on remand, was cooperative, appeared remorseful, and presented a low risk of re-offending. The Tribunal also considered the impact of cancellation on the applicant's wife and mother-in-law, with whom he lived and who provided him with considerable support. Furthermore, cancellation would prevent him from completing his intensive correction order and community service.

The Tribunal concluded that while the offence was serious, the applicant had been punished and was serving his sentence. The Tribunal found that the impact on his family and his inability to complete his community service were significant factors. Consequently, the Tribunal set aside the decision to cancel Mr Nguyen's Bridging E visa.