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

This matter concerned an application by the Applicant, Mailau, to review the decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was triggered by the Applicant failing to pass the character test. The dispute before the Tribunal was whether there was "another reason" to revoke this mandatory cancellation.

The legal issue before the Tribunal was to determine whether, in light of Ministerial Direction No. 79, there were sufficient countervailing considerations to warrant the revocation of the mandatory visa cancellation, despite the Applicant failing the character test. This involved assessing the primary consideration of protecting the Australian community from harm, as well as other primary and other considerations.

The Tribunal considered Ministerial Direction No. 79, which mandates that decision-makers acknowledge the privilege of non-citizens remaining in Australia and the expectation that they will be law-abiding. The Direction requires consideration of the nature and seriousness of the non-citizen's conduct and the risk to the community. While the Applicant's representative did not dispute the seriousness of the Applicant's offending, particularly the assault on his ex-wife, they argued that his record was not so lengthy or serious as to present an unacceptably high risk of reoffending, especially when weighed against other favourable considerations. However, the Tribunal found that the seriousness of the offending, including the assault, was such that it could not be outweighed by other considerations.

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