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

This matter concerned an appeal by Mr. Ung against the mandatory cancellation of his visa, which had been cancelled due to his substantial criminal record. The dispute before the Administrative Appeals Tribunal (AAT) was whether the discretion to revoke the mandatory cancellation should be exercised, considering the factors outlined in Direction 79 issued under section 499 of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether there was another reason that justified the revocation of the visa cancellation. This involved weighing the primary considerations, including the interests of minor children and the strength, nature, and duration of the applicant's ties to Australia, against the seriousness of the offending conduct and the risk of reoffending. The applicant had been convicted of wounding with intent to cause grievous bodily harm and two counts of common assault, with the offending occurring while intoxicated.

The Tribunal reasoned that while the applicant's serious and violent offences due to alcohol misuse presented a risk to the Australian community and community expectations favoured confirmation of the cancellation, the interests of his two minor half-sisters were a primary consideration that weighed heavily in favour of revocation. The Tribunal accepted that the applicant had a strong personal deterrent from his jail experience, had good prospects of employment, and had abstained from alcohol for a significant period. Despite acknowledging the potential difficulties Mr. Ung would face in Cambodia and his integral role within his Australian family unit, the Tribunal concluded that the interests of his half-sisters, who depended on him to a considerable extent, tipped the balance in favour of revocation.

Ultimately, the Tribunal decided to set aside the delegate's decision and, in substitution, ordered that the visa cancellation be revoked.