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

The applicant, Falaniko, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the mandatory cancellation of his Special Category (Temporary) visa. The dispute arose because Falaniko did not pass the character test, leading to the cancellation of his visa. The matter was heard by George SM in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the Administrative Appeals Tribunal (AAT) had erred in affirming the decision not to revoke the mandatory cancellation of Falaniko's visa. Specifically, the court needed to consider whether the AAT had properly applied Ministerial Direction No. 90, particularly in relation to the weight given to primary considerations such as the protection of the Australian community, and whether the applicant's personal circumstances, including a history of bullying and drug use, were adequately considered against the seriousness of his offending conduct.

George SM reasoned that the AAT had correctly applied the principles of Ministerial Direction No. 90. The court noted that the applicant had a history of violent conduct, including assaults on police, a domestic partner, and family members, which are considered very serious by the Australian Government and community. Despite the applicant's evidence regarding his experiences of bullying and subsequent drug use, the court found that these factors did not outweigh the significant risk to the Australian community posed by his past behaviour. The court emphasised that entering or remaining in Australia is a privilege, and the applicant's conduct demonstrated a failure to respect Australian laws and institutions.

Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of Falaniko's visa.