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

This matter concerned an application for review by YVYQ, a Vietnamese national, of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse to revoke the mandatory cancellation of his resident return visa. The visa had been cancelled due to YVYQ possessing a substantial criminal record. The applicant sought to summon a servant of the Minister, which was refused by the Tribunal.

The legal issues before the Tribunal were twofold: first, whether the applicant failed the statutory character test, and second, if he did fail the character test, whether there was another reason to revoke the mandatory cancellation of his visa. The Tribunal was required to consider Direction No. 90, which sets out primary and other considerations for decision-makers, and to determine the weight to be given to these considerations.

The Tribunal reasoned that the four convictions for arson constituted the most serious offending in the applicant's criminal history. In considering Direction No. 90, the Tribunal noted the principles that Australia has a sovereign right to determine who remains in the country, that non-citizens engaging in serious conduct should expect to forfeit their privilege to remain, and that the Australian community expects the government to refuse entry or cancel visas for those raising serious character concerns. The Tribunal also acknowledged that while Australia may afford a higher tolerance for criminal conduct by non-citizens who have lived in the community for a long time, the nature of certain conduct, such as family violence, can be so serious that even strong countervailing considerations may be insufficient. The Tribunal was satisfied that its discretion was enlivened.

The Tribunal set aside the decision under review and substituted a new decision.