Fetalaiga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The applicant, Mr. Fetalaiga, a New Zealand citizen holding a special category visa, had his visa cancelled due to a substantial criminal record. He sought revocation of this cancellation, but the delegate refused. The applicant then sought review by the Administrative Appeals Tribunal (AAT).

The AAT was required to determine the weight to be given to various considerations under a ministerial direction when deciding whether to revoke the mandatory visa cancellation. These considerations included the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's criminal conduct, the strength, nature, and duration of his ties to Australia, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal also considered other potentially relevant factors, such as the impediments to removal and the impact on Australian business interests.

The Tribunal reasoned that the ministerial direction mandated consideration of specific primary factors. In this instance, the applicant's criminal history included a conviction for culpable driving causing death, for which he received a six-year prison sentence, and several other traffic offences in New Zealand, including driving with a high blood alcohol content and driving while disqualified. The Tribunal found that the seriousness of the culpable driving offence, which resulted in a death, was a significant factor. Weighing this against other considerations, the Tribunal concluded that the primary considerations relating to the protection of the Australian community and the expectations of that community were determinative.

Consequently, the Tribunal was not satisfied that there was another reason to revoke the mandatory cancellation of the applicant's visa. The Tribunal affirmed the decision under review.