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

The Administrative Appeals Tribunal considered the case of Thieu and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the applicant's Five-Year Resident Return (BB-155) visa under section 501(3A) of the Migration Act 1958 (Cth) due to the applicant failing to pass the character test, specifically because she had a substantial criminal record. The central issue was whether the discretion to revoke the visa cancellation under section 501CA(4) of the Act should be exercised, with particular regard to Ministerial Direction No. 99.

The Tribunal was required to determine the weight to be given to various considerations outlined in Ministerial Direction No. 99 when deciding whether to revoke the visa cancellation. These considerations included the strength, nature, and duration of the applicant's ties to Australia, the best interests of any minor children in Australia affected by the decision, the expectations of the Australian community, and the extent of any impediments the applicant might face if removed from Australia. The Tribunal had to balance these factors to ascertain if the mandatory cancellation should be revoked.

In its reasoning, the Tribunal found that the applicant's ties to Australia, particularly her relationship with her three Australian citizen children and the emotional hardship her removal would cause them, strongly favoured revocation. The children provided compelling evidence of their need for her financial and emotional support. However, the Tribunal also acknowledged that the applicant's criminal offending did not meet the expectations of the Australian community, which would expect non-citizens to obey the law. Regarding impediments to re-establishing herself in Vietnam, the Tribunal found no evidentiary basis to conclude she would receive support from her mother and siblings there. Ultimately, the Tribunal set aside the decision under review and substituted its own decision.