Ma'afu and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of Tonga, had his visa mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, specifically being sentenced to a term of imprisonment of 12 months or more. The delegate of the Minister subsequently refused to revoke this cancellation. The Administrative Appeals Tribunal had jurisdiction to review this refusal.

The primary legal issue before the Tribunal was whether there was "any other reason" why the original decision to cancel the Applicant's visa should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the considerations outlined in Direction 79, particularly Primary Consideration A, which focuses on the protection of the Australian community from harm. This involved assessing the nature and seriousness of the Applicant's past conduct and the risk of future offending.

The Tribunal considered evidence regarding the Applicant's criminal history, which was conceded to be very serious and involved significant violence, particularly when under the influence of alcohol. However, the Tribunal also had regard to expert evidence from Dr Yoxall, who concluded that the Applicant's risk of reoffending was low, provided he maintained abstinence from alcohol. Dr Yoxall noted that the Applicant had abstained from alcohol since the offending and demonstrated insight into his behaviour. The Tribunal acknowledged that the Applicant's risk of violent offending was conditional on his abstinence from alcohol, and that any relapse could alter this assessment.

The Tribunal set aside the decision under review and substituted a new decision. The Tribunal found that there was another reason why the original decision to cancel the Applicant's visa should be revoked, specifically that the Applicant had demonstrated a low risk of reoffending due to his abstinence from alcohol and his commitment to ongoing support and counselling.