Fiu and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Fiu for the revocation of a mandatory visa cancellation. The decision-maker was required to consider whether the original decision to cancel Mr Fiu's visa should be revoked, applying Ministerial Direction No. 65.

The primary legal issue before the Tribunal was to determine whether the decision not to revoke the mandatory cancellation of Mr Fiu's visa was the preferable decision, by applying the principles and considerations outlined in Ministerial Direction No. 65. This involved assessing various factors, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal was also required to consider the nature and seriousness of Mr Fiu's conduct, including the frequency and cumulative effect of any offending, and the sentence imposed by the courts.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 65, which mandates that decision-makers must consider specific primary and other considerations when determining whether to revoke a mandatory visa cancellation. The Direction emphasizes the sovereign right of Australia to determine who may remain in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that serious offenders will face visa cancellation. The Tribunal noted that crimes against vulnerable members of the community are considered particularly serious, and that the cumulative effect of repeated offending is a relevant factor. The Direction also distinguishes between non-citizens who have lived in Australia for a short period and those who have resided there for most of their lives, suggesting a potentially higher tolerance for offending in the latter circumstances.