NWWJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by NWWJ against the mandatory cancellation of his Partner (Residence) (Class BS) Subclass 801 visa. The cancellation was based on NWWJ failing to pass the character test due to a domestic violence conviction of a serious and violent nature. The Tribunal was required to consider Ministerial Direction No. 79, which mandates the cancellation of visas in such circumstances, and determine if there was any other reason to revoke the cancellation, balancing factors such as the protection of the Australian community against the applicant's ties to Australia and any impediments to his removal.

The primary legal issues before the Tribunal were whether the nature and seriousness of NWWJ's conduct, and the risk to the Australian community, weighed in favour of revoking the visa cancellation. The Tribunal also considered the strength, nature, and duration of NWWJ's ties to Australia, the extent of impediments to his removal, and whether any non-refoulement obligations were owed. NWWJ maintained his innocence regarding the conviction and argued that the Department had acted deceitfully. He also presented evidence regarding his relationship with his adult daughter, his work with refugees, and his support for democracy in Vietnam, which he claimed had led to a fear of harm if returned to Vietnam, although a prior protection visa application had been refused.

The Tribunal noted that while NWWJ spent considerable time asserting his innocence, it had no power to look behind the criminal conviction. The evidence presented indicated a history of domestic violence incidents involving NWWJ and his ex-wife, including a temporary protection order in 2014 and subsequent court proceedings for breach of that order, prior to him being granted permanent residency in 2015. Police records detailed erratic behaviour and potential unaddressed mental health issues, which NWWJ denied. The Tribunal found that while NWWJ's claims about his relationship with his daughter and his work in support of democracy in Vietnam were noted, there was insufficient material to support specific fears of persecution or harm if returned to Vietnam. Consequently, the Tribunal found that these considerations weighed only slightly in favour of revoking the cancellation, and not substantially.

The Tribunal affirmed the delegate's decision to cancel NWWJ's visa. The applicant's attempts to re-open the hearing after evidence had concluded were declined, as no valid reason was advanced. The Tribunal concluded that, on the evidence presented, the preferable decision was to affirm the cancellation of the visa.