Mataia and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr. Mataia (the applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of a decision by the Minister for Immigration and Border Protection to cancel his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test. The applicant had a substantial criminal record, including convictions for robbery in company, aggravated break and enter in company, assault occasioning actual bodily harm, and affray. The Tribunal was required to consider whether to revoke the visa cancellation decision under section 501CA(4) of the Act, having regard to Direction No. 65.

The Tribunal was tasked with determining whether there was another reason why the original visa cancellation decision should be revoked. In doing so, it was required to apply Direction No. 65, which mandates consideration of specific factors. These included the nature and seriousness of the applicant's conduct and the risk to the Australian community, the best interests of any minor children, the expectations of the Australian community, international non-refoulement obligations, the strength, nature, and duration of the applicant's ties to Australia, the impact on victims, and the extent of impediments if the applicant were removed from Australia. The Direction specifies that primary considerations should generally be given greater weight than other relevant considerations.

The Tribunal's reasoning focused on the applicant's extensive criminal history, particularly the two convictions for robbery in company in 2014, which involved significant violence against two victims. The Tribunal noted the applicant's active participation in the assaults, including punching, kicking, and holding one victim while others robbed him, and then continuing to assault the victims even after they were incapacitated. The Tribunal also considered the applicant's prior convictions from his youth, including aggravated break and enter, assault, and affray. While acknowledging the applicant's ties to Australia and the potential impact on his family, the Tribunal found that the seriousness of the criminal conduct and the risk posed to the Australian community were paramount. The Tribunal concluded that these primary considerations outweighed the other factors, and therefore, there was no other reason why the visa cancellation decision should be revoked. The Tribunal affirmed the decision to cancel the applicant's visa.