Mautofu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Otolose Mautofu for review of the Minister for Immigration, Citizenship and Multicultural Affairs' decision to refuse to revoke the mandatory cancellation of his visa. The applicant, a citizen of Tonga, had his visa mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically a conviction for negligent driving occasioning death and a subsequent conviction for driving while disqualified. The applicant sought revocation of this cancellation under section 501CA(4) of the Act, arguing there was "another reason" why the decision should be revoked. The review was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was another reason why the decision to refuse to revoke the mandatory visa cancellation should be set aside. In considering this, the Tribunal had to assess the primary considerations outlined in Direction 99, namely the protection of the Australian community from criminal or other serious conduct, and the strength, nature, and duration of the applicant's ties to Australia. The Tribunal also considered the absence of any evidence of family violence committed by the applicant.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's past offending, particularly the conviction for negligent driving occasioning death, which resulted in the loss of two lives. It also noted the subsequent conviction for driving while disqualified. However, the Tribunal gave considerable weight to evidence demonstrating the applicant's genuine remorse and his low risk of reoffending, supported by an LSI-R assessment. Furthermore, the Tribunal considered the applicant's significant ties to Australia, including his long residence, his role as a caregiver for his elderly mother, and the hardship his absence caused his wife and child, who are Australian residents. Despite the gravity of the original offending, the Tribunal found that the applicant's remorse, low risk of reoffending, and strong ties to Australia constituted "another reason" for revocation.

Consequently, the Tribunal set aside the decision under review and substituted a new decision to revoke the mandatory cancellation of the applicant's visa.