Fuiava (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by Mr Fuiava against the cancellation of his Subclass 444 (Special Category) visa. The cancellation was based on extensive criminal conduct, including a history of violence and repeated offences, and the existence of intervention orders.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) of the *Migration Act 1958* (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. While the Act and Regulations did not specify mandatory considerations for this discretion, the Tribunal had regard to matters outlined in the Department’s Procedures Advice Manual, including the purpose of the visa holder's stay, compliance with visa conditions, the degree of hardship that may be caused by cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal found that the ground for cancellation under s 116(1)(e) was established, noting the applicant's serious disregard for Australian laws and the safety of others, evidenced by his resort to violent and criminal behaviour. In exercising its discretion, the Tribunal considered the applicant's stated purpose of being in Australia to be with his family and support his children, his reconciliation with his partner, and his ties to Australia. However, it also weighed the significant hardship that would be caused by the cancellation against the applicant's lengthy prison sentence and his demonstrated pattern of violent conduct. Ultimately, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr Fuiava's Subclass 444 (Special Category) visa.