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

This matter concerned an appeal by Mr N against a decision to cancel his safe haven enterprise visa. Mr N, a citizen of Vietnam, had been granted a protection visa in 2017 due to threats to his personal safety if returned to Vietnam. He subsequently became involved in drug cultivation and related offences, for which he received an aggregate sentence of three years and eight months imprisonment. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The Administrative Appeals Tribunal, exercising its de novo jurisdiction, was required to determine the correct or preferable decision on the evidence before it.

The primary legal issue before the Tribunal was whether the cancellation of Mr N's visa should be upheld or revoked. This involved considering the impact of Mr N's criminal offending on his eligibility for protection and the continued validity of his visa, particularly in light of the fact that the circumstances in Vietnam giving rise to his original protection visa had not changed. The Tribunal was required to assess the evidence afresh and make its own determination as to the correct or preferable outcome.

The Tribunal reasoned that while Mr N's criminal conduct was serious, his role in the drug offences was at the lower end of a criminal hierarchy. Crucially, the Tribunal noted that the respondent had not presented evidence suggesting any change in the threat to Mr N's personal safety in Vietnam. Given the Tribunal's obligation to reach the correct or preferable decision on the evidence before it, and the continued existence of protection needs in Vietnam, the Tribunal concluded that revoking the visa cancellation was the appropriate course of action.

The Tribunal set aside the decision under review and substituted a decision that the cancellation of Mr N’s visa be revoked.