Duar Te Do Pateo Fernandes and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Duar Te Do Pateo Fernandes to review a decision by the Minister for Immigration and Border Protection not to revoke the cancellation of his visa. The dispute centred on whether Mr Fernandes met the character test due to his criminal record, and if so, whether the cancellation of his visa should be revoked. The case was heard by Deputy J W Constance P.

The primary legal issues before the court were whether Mr Fernandes continued to satisfy the character test, and if not, whether there were sufficient grounds to revoke the mandatory cancellation of his visa. This involved assessing the seriousness of his past offending, the risk of re-offending, the best interests of his Australian citizen daughter, and the expectations of the Australian community regarding adherence to the law.

Deputy J W Constance P reasoned that while Mr Fernandes had a substantial criminal record, including convictions for common assault, contravening an apprehended violence order, driving with middle-range prescribed concentration of alcohol, shoplifting, and robbery armed with an offensive weapon, the nature of his offending and the circumstances surrounding it, such as his homelessness and separation from his partner at the time of the shoplifting offences, were relevant considerations. The court found that the best interests of Mr Fernandes' seven-year-old daughter weighed heavily in favour of revoking the cancellation. Furthermore, the court was satisfied that fair-minded members of the Australian community, fully apprised of all facts and the applicable law, would not expect Mr Fernandes to be deported, but rather would expect him to be given an opportunity to demonstrate he could be a productive member of society.

Consequently, the court set aside the decision not to revoke the cancellation of Mr Fernandes' visa and, in substitution, decided that the cancellation of his Class WE Subclass 050 Bridging E General (Temporary) visa was revoked.