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

This matter concerned an application for revocation of a mandatory visa cancellation made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs against Mr Atua. Mr Atua’s visa had been cancelled on 28 May 2019 due to his failure to pass the character test, specifically because he possessed a substantial criminal record, having been sentenced to 28 months imprisonment for firearm offences. Mr Atua did not dispute that he failed the character test. The application for revocation was heard by Mrs J C Kelly, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether there was "another reason" why the mandatory visa cancellation should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This required the Tribunal to consider the factors outlined in Part C of Direction 79, which included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia affected by the decision, the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, and the extent of impediments if removed from Australia.

The Tribunal's reasoning involved a detailed assessment of Mr Atua's criminal history, including a restaurant incident resulting in convictions for larceny and intimidation, and firearm offences for which he received a substantial prison sentence. The Tribunal considered Mr Atua's version of events and the respondent's contentions, noting differences in their accounts. It also took into account Mr Atua's long-standing ties to Australia, having arrived as a child and lived there ever since, and his completion of vocational training. The Tribunal weighed the primary considerations, including the protection of the Australian community, against other factors such as Mr Atua's ties to Australia and the potential impact on his family.

Ultimately, the Tribunal found that the considerations favouring the revocation of the visa cancellation decision outweighed those favouring its non-revocation. Accordingly, the Tribunal set aside the reviewable decision made on 15 September 2020 and, in substitution, revoked the mandatory visa cancellation.