Maki and Minister for Home Affairs (Migration)

This matter concerned an application by a 63-year-old Finnish man, who had resided in Australia since 1978, to review a decision to cancel his visa. The applicant had a history of offending, commencing in 1980, which he attributed to alcohol consumption. His offending occurred in two periods, the first from approximately 1980 to 1985, involving relatively minor offences, and the second from approximately 2008 to 2013, culminating in a conviction for intentionally causing serious injury in 2013, for which he was sentenced to six years imprisonment. The applicant disputed the findings of fact in relation to this serious assault and other convictions, alleging corruption and fraud. He had no meaningful connections or friendships in Australia and received a disability support pension since the early 1980s. The review was heard by R. Pintos-Lopez SM.

The primary legal issues before the Tribunal were whether the applicant passed the character test under section 501 of the Act, specifically whether he had a substantial criminal record, and alternatively, whether there was another reason why the decision to cancel his visa should be revoked. The Tribunal was required to consider the framework provided by the Direction, which outlines primary and other considerations for exercising the discretion under section 501CA of the Act. This involved assessing the degree of various considerations and weighing them appropriately.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record, as defined by section 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more. The Tribunal applied the principle that the sentence imposed, rather than the term actually served, is relevant for this determination. In considering whether there was another reason to revoke the cancellation decision, the Tribunal was guided by the Direction, which requires a fair assessment and weighing of primary considerations such as the protection of the Australian community from criminal conduct, the best interests of minor children, and the expectations of the Australian community. The Tribunal also considered other factors outlined in the Direction, including the nature and seriousness of the applicant's conduct, the risk of future offending, the sentence imposed, the frequency and trend of offending, and the cumulative effect of repeated offending. The Tribunal affirmed the reviewable decision.