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

The Administrative Appeals Tribunal considered the case of Mr. Faavesi and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning the mandatory cancellation of the Applicant's visa. The Applicant, a New Zealand citizen who had resided in Australia since 2013, had his visa cancelled due to failing the character test, stemming from a significant criminal record including multiple driving offences while disqualified, driving with illicit drugs in his system, and drug possession. The Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, applying Ministerial Direction 90.

The central legal issue before the Tribunal was the application of Ministerial Direction 90, which outlines the considerations for revoking a mandatory visa cancellation. This direction requires decision-makers to assess various factors, including the protection of the Australian community, the nature and seriousness of offending conduct, the risk of reoffending, family violence, the best interests of minor children, community expectations, non-refoulement obligations, impediments to removal, the impact on victims, and the strength, nature, and duration of ties to Australia. The Tribunal also had to consider the weight to be given to "other considerations" as distinct from "primary" considerations, drawing on judicial authority that these can, in appropriate circumstances, outweigh primary considerations.

The Tribunal reasoned that while the Applicant's criminal conduct weighed against him, the weight assigned to this factor was low. It then considered the "other considerations" as mandated by Direction 90. Notably, the Applicant raised concerns about potential death threats from gang members in New Zealand, suggesting a non-refoulement obligation might arise, although the Tribunal found this claim was not entirely consistent with his documented history. Despite the seriousness of his offending, the Tribunal found that there were other reasons, not explicitly detailed in the provided text but implied by the outcome, that justified revoking the visa cancellation. The Tribunal ultimately set aside the decision under review and substituted it with a decision revoking the cancellation of the Applicant's visa.