Leota and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Damien Leota, a New Zealand citizen who had resided in Australia for approximately 20 years, for the revocation of a mandatory visa cancellation. Mr Leota's visa was cancelled by the Minister for Immigration and Border Protection (the Minister) under section 501(3A) of the Migration Act 1958 (Cth) due to his substantial criminal record, specifically having been sentenced to terms of imprisonment totalling 12 months or more. The decision was heard by Dr James Popple, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Migration Act. This required the Tribunal to consider the primary and other considerations outlined in Ministerial Direction No. 65, which governs the exercise of discretion in such matters. The Tribunal was obliged to comply with this Direction.

In its reasoning, the Tribunal applied Ministerial Direction No. 65, which mandates consideration of factors such as the protection of the Australian community, the best interests of minor children, and community expectations as primary considerations. It also requires consideration of other factors, including the strength of ties to Australia and the extent of impediments if removed. The Tribunal found that Mr Leota's criminal conduct was very serious, noting he had been sentenced to unsuspended terms of imprisonment for violent crimes on four occasions, had frequently reoffended, and had spent a significant portion of his life in prison. Weighing these factors against Mr Leota's ties to Australia and the potential impediments to his removal, the Tribunal was not satisfied that there was another reason to revoke the visa cancellation.

Accordingly, the Tribunal affirmed the decision not to revoke the mandatory visa cancellation.