QFFD and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of QFFD and the Minister for Immigration and Border Protection concerning the mandatory cancellation of the applicant's visa. The applicant, a Tongan citizen and Australian permanent resident, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to failing the character test, specifically by having a substantial criminal record, including a sentence of four years' imprisonment in 2005 and a further conviction for assault occasioning actual bodily harm in 2016. The applicant sought revocation of this cancellation.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, as contemplated by section 501CA(4) of the Act. This required the Tribunal to assess the applicant's character, the risk he posed to the Australian community, and any other relevant considerations, including the prospect of rehabilitation and the impact on his Australian citizen children. The Tribunal was also required to consider the principles outlined in Ministerial Direction No. 65, particularly regarding the protection of the Australian community from harm.

The Tribunal reasoned that the applicant clearly failed the character test due to his substantial criminal record, which included serious violent offences over several decades, culminating in a death resulting from a road rage incident. While acknowledging the applicant's desire to remain in Australia to be a father to his Australian citizen children, and the evidence provided by his children regarding his positive qualities and their reliance on him, the Tribunal found that the protection of the Australian community was paramount. The Tribunal concluded that the serious and persistent nature of the applicant's offending over a prolonged period meant that the expectations of the Australian community necessitated the affirmation of the visa cancellation.

Accordingly, the Tribunal affirmed the decision of the delegate of the Minister not to revoke the mandatory cancellation of the applicant's visa.