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

This matter concerned an application by Mr Aualiitia for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Aualiitia having a substantial criminal record, which meant he failed the character test under section 501(3A)(a)(i) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was "another reason" why the original decision to cancel the visa should be revoked, as provided for in section 501CA(4)(b)(ii) of the Act.

The Tribunal was tasked with considering the primary considerations outlined in Ministerial Direction No. 79, including the protection of the Australian community from harm. This involved assessing the nature and seriousness of Mr Aualiitia's conduct, specifically his conviction for robbery in company for which he received a sentence of imprisonment of 4 years and 5 months, and the risk of future offending. The Tribunal also had to consider "other considerations" and any other reasons why the cancellation should be revoked, including Mr Aualiitia's personal circumstances, his rehabilitation efforts, and his ties to Australia. The Tribunal was also required to consider interactions with police that did not lead to charges, and whether these should be given weight in the decision-making process.

In its reasoning, the Tribunal acknowledged the seriousness of the robbery conviction and the resulting failure of the character test. However, it also considered evidence of Mr Aualiitia's rehabilitation, including his strong relationship with his daughter and his re-evaluation of his life. The Tribunal noted that while Mr Aualiitia had undertaken an anger management program, he could not recall the details of its teachings, suggesting a need for further intervention. The Tribunal also considered Mr Aualiitia's past interactions with police, some of which did not result in charges, and the submissions made regarding the weight to be given to these incidents. The Tribunal applied the principles from *Gaspar v Minister for Immigration and Border Protection* (2016) 153 ALD 338, which clarified that section 501CA(4)(b)(ii) requires a single-stage process of assessing factors for and against revocation.

The Tribunal found that Mr Aualiitia had a substantial criminal record and failed the character test. However, after considering all the evidence and applying Ministerial Direction No. 79, the Tribunal was satisfied that there was another reason why the original decision to cancel the visa should be revoked. Consequently, the Tribunal set aside the original decision and substituted a new decision revoking the cancellation of Mr Aualiitia's visa.