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

This matter concerned an application by the Applicant, Leiataua, to set aside a decision to mandatorily cancel his Class TY Subclass 444 Special Category (temporary) visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record, specifically a conviction for grievous bodily harm. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether there was another reason to exercise the discretion to revoke the mandatory cancellation of the Applicant's visa, as contemplated by section 501CA(4) of the *Migration Act 1958* (Cth). This required the Tribunal to consider Ministerial Direction Number 79, which mandates consideration of the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk to the community of further offending, and the interests of affected minor children.

The Tribunal considered the Applicant's offending, which involved grievous bodily harm committed while severely intoxicated. The Applicant had expressed remorse, turned himself in to the police, pleaded guilty, and attempted to make amends with the victim. The Tribunal noted the Applicant's concession of his offending but also his professed vagueness regarding certain critical aspects of the incident. Despite the seriousness of the offence, the Tribunal found that there was another reason to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the decision under review and substituted its own decision, exercising the discretion conferred by section 501CA(4) of the *Migration Act 1958* (Cth) to revoke the mandatory cancellation of the Applicant's visa.