TPMP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, who arrived in Australia from Vietnam as a 14-year-old refugee, had a substantial criminal record, including serious drug trafficking offences, which meant he did not pass the character test under section 501(6) of the *Migration Act 1958* (Cth). The primary issue for the Tribunal was to determine whether there was another reason why the cancellation decision should be revoked under section 501CA(4) of the Act.

The Tribunal was required to consider two main issues: first, whether the Applicant passed the character test, and second, if he did not, whether there was another reason to revoke the cancellation decision. In assessing the latter, the Tribunal was guided by Direction No 90, which mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of the Applicant's conduct, any risk to the community, the best interests of any minor children, community expectations, Australia's non-refoulement obligations, the Applicant's ties to Australia, and the prospect of prolonged detention. The Applicant had previously been found to be a refugee by a differently constituted Tribunal.

In its reasoning, the Tribunal acknowledged the Applicant's long residence in Australia, having arrived as a child and spent most of his life there. However, it found that his criminal history, which began at age 17 and included significant periods of imprisonment, diminished the weight given to his time in the community. Despite this, the Tribunal found that the Applicant had strong ties to Australia, with all his immediate family, including his mother, daughter, and siblings, residing there, and no family remaining in Vietnam. The Tribunal also noted that the Applicant's family members would suffer emotional detriment if he were removed from Australia.

The Tribunal set aside the delegate's decision and substituted its own decision to revoke the mandatory cancellation of the Applicant's visa.