Lum and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Lum for the non-revocation of a mandatory cancellation of his visa on character grounds. Mr Lum did not pass the character test, having been sentenced to 12 months' imprisonment. The dispute before Senior Member Theodore Tavoularis of the Administrative Appeals Tribunal was whether there was another reason why the mandatory cancellation decision should be revoked, applying the Primary and Other Considerations outlined in Direction No 79.

The Tribunal was required to determine the weight to be given to Primary Consideration A, which concerns the protection of the Australian community from harm. This involved assessing the nature and seriousness of Mr Lum's conduct to date and the risk to the Australian community should he commit further offences. The Tribunal was also directed to consider Mr Lum's criminal history, including his National Police Certificate and an extensive traffic history involving multiple driving licence suspensions.

In applying the principles of Direction No 79, the Tribunal noted that remaining in Australia is a privilege for non-citizens, who are expected to be law-abiding and respect Australian institutions. The Tribunal considered the nature and seriousness of Mr Lum's offending, acknowledging his awareness of the severe potential harm his actions could have caused. The Tribunal also had regard to factors such as the principle that violent crimes are viewed very seriously, the sentence imposed by the court, the frequency of offending, and the cumulative effect of repeated offending.

Ultimately, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of Mr Lum's visa. The decision under review was affirmed.