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

This matter concerned an application for review of the Minister’s delegate’s decision not to revoke the mandatory cancellation of the Applicant’s Partner visa. The Applicant had failed the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Applicant sought to have the cancellation revoked, arguing there was "another reason" to do so, as contemplated by the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal (AAT) was required to determine whether such a reason existed, considering the framework established by ministerial Direction no. 79.

The legal issues before the Tribunal were whether the Applicant had established "another reason" to revoke the mandatory visa cancellation, and if so, how the primary and other considerations outlined in Direction no. 79 should be weighed. The primary considerations included the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider "other considerations," such as international non-refoulement obligations, the strength, nature, and duration of the Applicant's ties to Australia, impact on victims, and the extent of impediments if removed.

The Tribunal reasoned that while the Applicant’s criminal conduct, involving the trafficking of a substantial amount of high-grade heroin for financial reward, was serious and the Australian community was the victim of the illicit drug trade, none of his offences fell into the category of crimes against women, children, or vulnerable members of the community. The Tribunal considered evidence regarding the Applicant's ties to Australia, including his relationship with his son, Anthony, who suffers from epilepsy and requires daily medication, and the support offered by his former partner and her family. However, the Tribunal found that the Applicant had not raised any fear of physical harm if returned to Vietnam, with his concerns primarily relating to his ability to discharge family duties and lack of family support there. After weighing the primary and other considerations, the Tribunal affirmed the non-revocation decision.