KAUTOGA (MIGRATION)

This case concerned the review of a decision to cancel the Subclass 401 (Temporary Work (Long Stay Activity)) visa held by the first applicant, a Fijian citizen. The applicant had been granted the visa in January 2014, sponsored by a sporting club, and it was due to expire in December 2015. The visa was cancelled by a delegate of the Minister on 2 July 2014, on the grounds that the applicant had breached condition 8303, which prohibited involvement in activities disruptive to or threatening harm to the Australian community. This cancellation was based on the applicant's arrest and subsequent charges for serious sexual offences and assault. The applicant's wife was included as a family member on the visa, but the Tribunal found it had no jurisdiction concerning her.

The primary legal issues before the Tribunal were whether the applicant had breached visa condition 8303, and if so, whether the discretion to cancel the visa should be exercised in the circumstances. The Tribunal was required to consider the applicant's conduct in light of the serious criminal charges he faced, and the fact that the visa would have expired before any potential resolution of those charges. The Tribunal also had to determine whether to proceed with the review in the absence of the applicant, who had failed to attend multiple hearings despite being given notice.

The Tribunal reasoned that the applicant had been afforded multiple opportunities to present his case, including adjournments, and had been informed that the review might proceed on the papers if he did not appear. Evidence indicated he had received hearing invitations by post and email, and his previous legal representatives had indicated no further documentary material would be provided. The Tribunal found that the applicant’s arrest and charges for serious criminal offences, which led to bail being refused initially, provided sufficient grounds to be satisfied that he had breached condition 8303. The Tribunal affirmed the decision to cancel the visa, concluding that, considering all circumstances, cancellation was warranted.