Faiumu and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Faiumu to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Faiumu failing to pass the character test due to a substantial criminal record. The Minister for Immigration and Border Protection opposed the revocation. The decision was made by M J McGrowdie SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether to revoke the mandatory cancellation of Mr Faiumu's visa, considering the primary considerations outlined in Ministerial Direction no 65. These considerations included the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal also had to weigh these against factors favouring the applicant, such as the impact on his family and the strength of his ties to Australia.

The Tribunal reasoned that the protection of the Australian community was a significant factor weighing against revocation. This was based on Mr Faiumu's history of serious violent offending, including two substantial prison sentences, and the fact that further offending occurred while he was on probation and parole. The Tribunal noted that the seriousness of the conduct was not diminished by the context of alcohol consumption and that the victims suffered significant injuries. Furthermore, the Tribunal found that Mr Faiumu's traffic offences, occurring while he was subject to court orders, indicated a disregard for the expectations of law-abiding conduct from non-citizens. The Tribunal also considered the expectations of the Australian community, which generally expects non-citizens to adhere to the law. While acknowledging Mr Faiumu's positive personal attributes and his current stable family life in New Zealand, the Tribunal concluded that these factors did not outweigh the primary considerations concerning community protection and expectations.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of Mr Faiumu's visa.