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

This matter concerned an application for review of a delegate's decision to mandatorily cancel the applicant's visa. The applicant, a citizen of Vietnam, had resided in Australia since 1992. His criminal history included a conviction in Vietnam in 2005 for abusing trust to appropriate property, for which he received a 12-month prison sentence, and a more recent conviction in Australia on 24 July 2018 for importing a commercial quantity of heroin, resulting in an eight-year prison sentence with a five-year non-parole period. The Tribunal was satisfied that the applicant did not pass the character test due to his substantial criminal record.

The primary legal issues before the Tribunal were whether there was "another reason" to revoke the mandatory visa cancellation under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), and if so, whether to exercise that discretion. In considering this, the Tribunal was required to apply Ministerial Direction No. 79, which outlines primary considerations including the protection of the Australian community from criminal conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that while the applicant's criminal offending, particularly the importation of a commercial quantity of heroin, weighed heavily against revocation due to the need to protect the Australian community, other considerations were also significant. The Tribunal acknowledged the profound impact that a decision not to revoke the visa cancellation would have on the applicant's Australian citizen wife and two children, including potential exacerbation of their existing mental health challenges. The Tribunal also considered the impact on the applicant's broader family network in Australia and the challenges he would face transitioning back to life in Vietnam without his immediate family. Despite these significant personal impacts, the Tribunal found that the expectations of the Australian community weighed against revocation, although this was tempered by the applicant's circumstances and the implications for his family.

Ultimately, the Tribunal concluded that while the impediments to revocation weighed in favour of revocation, they did not do so significantly. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.