Atuaki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review by Mr Atuaki of the decision not to revoke the mandatory cancellation of his Class GD Subclass 403 Temporary Work (International Relations) visa. The visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) after Mr Atuaki was convicted of 'Reckless grievous bodily harm-T1' and 'Common assault-T2' and sentenced to three years' imprisonment with a non-parole period of 18 months. The Tribunal, constituted by W Frost M, affirmed the decision under review, meaning Mr Atuaki's visa remained cancelled.

The Tribunal was required to determine two key issues: first, whether Mr Atuaki passed the 'character test' as defined in the Act; and second, if he did not pass the character test, whether there was 'another reason' why the decision to cancel his visa should be revoked under s 501CA(4) of the Act. In considering the second issue, the Tribunal was bound to comply with Ministerial Direction 99, which outlines primary and other considerations relevant to such decisions.

The Tribunal found that Mr Atuaki failed the character test due to having a substantial criminal record, as defined by the Act, given his sentence of imprisonment of 12 months or more. In assessing whether there was 'another reason' to revoke the cancellation, the Tribunal considered the primary considerations under Direction 99, including protection of the Australian community, the strength of ties to Australia, and the best interests of minor children. The Tribunal noted the seriousness of Mr Atuaki's offending, which included violent crimes. While Mr Atuaki expressed a desire to support his children in Tonga and stated he would not re-offend, the Tribunal concluded that these factors did not outweigh the primary consideration of protecting the Australian community from criminal conduct.

Ultimately, the Tribunal decided to affirm the decision not to revoke the mandatory cancellation of Mr Atuaki's visa. This outcome meant that Mr Atuaki's application to the Tribunal was unsuccessful, and his visa remained cancelled.