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

This matter concerned an application for review of the Minister's decision to cancel the Applicant's Class BB, Subclass 155 Five Year Resident Return visa. The Applicant, a citizen of Tonga, failed the character test due to an extensive criminal record. The Tribunal was required to consider whether the discretion to cancel the visa should be exercised, having regard to Direction No 79, which mandates consideration of factors including the protection of the Australian community, the best interests of minor children, community expectations, the strength of ties to Australia, the impact on victims, and impediments to removal.

The central legal issues before the Tribunal were whether the Applicant passed the character test and, if not, whether the Minister's discretion to cancel the visa should be exercised in favour of the Applicant. This involved a detailed assessment of the Applicant's criminal history, which spanned over 29 years and included numerous driving offences, some of which were high-range drink driving, and instances of violence, including an assault on his daughter. The Tribunal was also required to consider the best interests of any minor children and the overall risk to the Australian community.

In its reasoning, the Tribunal applied the principles outlined in Direction No 79. It found that the Applicant's substantial and persistent criminal conduct, particularly the violent offences and repeated driving under the influence, posed an unacceptable risk to the Australian community. The Tribunal noted that despite previous warnings and penalties, the Applicant's offending behaviour had continued, with no evidence of rehabilitation. The Tribunal also considered the impact of the Applicant's conduct on his daughter and the potential negative influence on younger members of the Tongan community, as evidenced by his "kava club" activities. The Tribunal concluded that the primary consideration of protecting the Australian community weighed strongly in favour of cancelling the visa.