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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant had failed the character test due to having a substantial criminal record, specifically being sentenced to a term of imprisonment of 12 months or more. The Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation, as provided for by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were to assess the primary and other considerations outlined in ministerial Direction No. 79, which guides decision-makers in determining whether to revoke a mandatory visa cancellation. These considerations included the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community as primary considerations. The "other considerations" encompassed matters such as international non-refoulement obligations, the strength, nature, and duration of ties to Australia, the extent of impediments if removed, and other relevant factors. The Tribunal was tasked with weighing these considerations to determine if there was a sufficient reason to depart from the mandatory cancellation.

The Tribunal reasoned that while the protection of the Australian community is a paramount consideration, and the Applicant's criminal conduct was serious, the weight afforded to primary and other considerations is a matter for the Tribunal. The Tribunal noted that "other considerations" are not necessarily of lesser importance than "primary" considerations, and their combined weight could outweigh primary considerations. The Tribunal considered the Applicant's background, including her family ties in Vietnam and her efforts to establish a business in Australia, alongside the seriousness of her offending. The Tribunal ultimately set aside the Minister's decision not to revoke the cancellation and substituted a decision to revoke the cancellation.