Peipi-Tepou and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to affirm the mandatory cancellation of Mr Peipi-Tepou's visa. The visa was cancelled on the grounds that Mr Peipi-Tepou did not pass the character test due to having a substantial criminal record. Mr Peipi-Tepou subsequently requested the revocation of this cancellation, which was refused by the delegate. The review was heard by J F Toohey SM.

The primary legal issue before the Tribunal was whether the delegate erred in refusing to revoke the mandatory cancellation of Mr Peipi-Tepou's visa. This required the Tribunal to consider the character test provisions under the Migration Act 1958 (Cth), specifically the definition of a substantial criminal record, and to weigh various primary and other considerations relevant to revocation, including Mr Peipi-Tepou's criminal history, his ties to Australia, the potential impact on victims, and his prospects of rehabilitation and reintegration into New Zealand. The Tribunal also had to address submissions made regarding the validity of section 501 of the Act, which were based on a misinterpretation of Federal Court decisions.

The Tribunal reasoned that Mr Peipi-Tepou did indeed have a substantial criminal record, as defined by the Act, based on his convictions in both New Zealand and Australia. While acknowledging his remorse and desire to move on, the Tribunal found that his explanations for his offending behaviour, particularly his tendency to minimise responsibility and apportion blame to victims, indicated a limited insight into the impact of his actions. Furthermore, his ties to Australia were considered tenuous, and his prospects of rehabilitation were undermined by his unresolved substance dependency and history of anger issues. The Tribunal found no evidence to support a claim that Mr Peipi-Tepou posed a risk of harm that would engage Australia's non-refoulement obligations, nor any other compelling reason to revoke the cancellation.

Ultimately, the Tribunal was satisfied that there were no other considerations relevant to the decision to revoke the cancellation of Mr Peipi-Tepou's visa. Consequently, the decision under review, which affirmed the mandatory cancellation, was affirmed.