Fualau and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Fualau against the mandatory cancellation of his visa. The cancellation was based on Mr Fualau having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more, which meant he failed the character test under the Migration Act 1958 (Cth). The primary issue before the Tribunal was whether there was "another reason" why the original decision to cancel his visa should be revoked, as permitted by section 501CA(4)(b)(ii) of the Act.

The Tribunal was required to consider the merits of the decision under review in accordance with Direction No. 65, which mandates that the Tribunal must give primary consideration to the protection of the Australian community. This involved assessing the nature and seriousness of Mr Fualau's conduct and the risk he posed to the community. Mr Fualau's criminal conduct included persistent breaches of family violence intervention orders and an aggravated burglary with an offensive weapon, for which he was serving a sentence of imprisonment.

In its reasoning, the Tribunal considered evidence presented by Mr Fualau, including character references and his explanations regarding his cultural background and the circumstances of his offending. However, the Tribunal found Mr Fualau's assertion that he did not carry a machete into the house during the aggravated burglary to be inconsistent with police evidence and his own legal submissions. The Tribunal concluded that Mr Fualau had a substantial criminal record and failed the character test. Applying the principles from *Gaspar v Minister for Immigration and Border Protection*, the Tribunal assessed the factors for and against revoking the cancellation. Despite acknowledging Mr Fualau's attempts to address his behaviour and the character references provided, the Tribunal found that the seriousness of his criminal conduct, particularly the aggravated burglary involving a weapon and the presence of children, weighed heavily against revocation.

The Tribunal affirmed the decision to cancel Mr Fualau's visa, finding no other reason why the original decision should be revoked.