Leau and Minister for Home Affairs (Migration)

This matter concerned an appeal by a New Zealand citizen, Mr. Leau, against the mandatory cancellation of his visa by the Minister for Home Affairs. Mr. Leau possessed a Temporary Visa (Subclass 444) and had an extensive criminal record, including convictions for common assault, domestic violence, aggravated break and enter, and other offences. The dispute centred on whether the mandatory cancellation of his visa was the correct and preferable decision.

The Administrative Appeals Tribunal was required to determine whether Mr. Leau passed the character test as defined by section 501(6) of the Migration Act 1958 (Cth), specifically considering whether he had a substantial criminal record. The Tribunal also had to assess the primary considerations outlined in the relevant Ministerial Directions, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of Mr. Leau's conduct, the best interests of any minor children, and the expectations of the Australian community. Furthermore, the Tribunal was to consider other relevant factors, such as the strength and duration of Mr. Leau's ties to Australia and the extent of impediments he might face if removed.

The Tribunal found that Mr. Leau did not pass the character test due to his substantial criminal record, which included a sentence of imprisonment of 12 months or more. In applying the primary considerations, the Tribunal noted the seriousness of Mr. Leau's violent offending, particularly against a female neighbour and in the presence of a child, and highlighted that Direction 79 specifically addresses crimes of a violent nature against women or children as being viewed very seriously. The Tribunal observed that Mr. Leau's offending had escalated and demonstrated a pattern of disregard for Australian law. The Tribunal also found that Mr. Leau lacked insight into his offending and was an unreliable witness, further weighing against him.

Ultimately, the Tribunal concluded that the factors in support of revoking the visa cancellation, relating to Mr. Leau's family, did not outweigh the primary considerations. Therefore, the Tribunal affirmed the delegate's decision to refuse to revoke the mandatory visa cancellation.