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

This matter concerned an appeal by Mr Tomasi Mailau against the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his visa. Mr Mailau’s visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason to revoke the visa cancellation decision.

The central legal issue before the Tribunal was whether the discretion under section 501CA(4) of the Act to revoke the mandatory visa cancellation should be exercised. This required the Tribunal to consider the considerations outlined in Direction No 79, which include the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, as primary considerations. Other considerations included the strength, nature, and duration of ties to Australia and impediments to removal.

The Tribunal reasoned that while it empathised with Mr Mailau's circumstances and acknowledged the potential for rehabilitation, there were too many uncertainties regarding his future conduct. The Tribunal found that the trend of increasing seriousness in his criminal offending and the risk of re-offending weighed heavily against revocation. The protection of the Australian community from further violence was considered of paramount importance, outweighing the possibility of further treatment or reform opportunities, particularly as the Direction advises against delaying decisions for rehabilitative courses.

Consequently, the Tribunal affirmed the decision of the Minister's delegate not to revoke the original decision to cancel Mr Mailau's visa.