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

This matter concerned an application by Ms. Fonoti (the Applicant) to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of her Class TY Subclass 444 Special visa. The Applicant did not pass the character test due to her criminal offending. The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 79.

The primary legal issue before the Tribunal was whether the Applicant's circumstances warranted the revocation of the mandatory visa cancellation, despite her failure to meet the character test. This involved assessing the weight to be given to the protection of the Australian community from harm, as outlined in Primary Consideration A of Ministerial Direction No. 79, and considering the nature and seriousness of the Applicant's conduct to date, as well as the risk of future offending.

The Tribunal considered the Applicant's submission that her offending history, while serious and violent, should be viewed in the context of subsequent diagnoses of mental health issues, specifically schizophrenia, which were not being treated at the time of the index offending. The Respondent contended that the Applicant's conduct was very serious and should weigh heavily against revoking the decision. The Tribunal was required to balance these competing considerations in determining whether to revoke the mandatory cancellation.