Eteuati and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Eteuati against the mandatory cancellation of his visa, which was based on his failure to pass the character test due to a criminal record. The dispute centred on whether the discretion to revoke this cancellation should be exercised, with the Minister for Home Affairs opposing the appeal. The decision was made by Deputy A G Melick Ao Sc P.

The court was required to determine whether there was another reason why the mandatory visa cancellation decision should be revoked, pursuant to section 501CA(4) of the Migration Act 1958 (Cth). This involved assessing various considerations, including the primary considerations outlined in Ministerial Direction No. 65, such as the protection of the Australian community from criminal conduct, the nature and seriousness of Mr Eteuati's conduct, the risk to the Australian community, and the best interests of his minor child. The court also had to consider other relevant factors, including the expectations of the Australian community and the strength, nature, and duration of Mr Eteuati's ties to Australia.

In reaching its decision, the court considered the evidence of Mr Eteuati's ties to Australia, including his family and social connections, and his relationship with his partner and daughter. While acknowledging the serious nature of his offending, the court also took into account the Magistrate's comments and the suspension of the majority of his sentence. Crucially, the court found that the best interests of Mr Eteuati's minor daughter, a primary consideration, would be served by revoking the cancellation. The court also considered Mr Eteuati's ties to Australia, his previous limited employment, his involvement in local sporting organisations, and the consequences of non-revocation for other family members, concluding that the Australian community would not expect the visa to remain cancelled if fully informed of the evidence.

The court set aside the mandatory cancellation of Mr Eteuati's visa and substituted a decision to revoke the cancellation.