Silao Robert Termorthy Sau and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Silao Robert Termorthy Sau for review of a decision by a delegate of the Minister for Immigration and Border Protection not to revoke the mandatory cancellation of his visa. The Administrative Appeals Tribunal was required to determine whether the delegate's decision was the preferable one, following the directions issued by the Minister under section 499 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether, despite Mr Sau not disputing that he failed to meet the character test under section 501(6) of the Migration Act, the discretion to revoke the mandatory visa cancellation should have been exercised. This involved considering all relevant circumstances to form a complete picture of Mr Sau's character, particularly in light of a serious assault incident that occurred while he was in immigration detention.

The Tribunal considered the Ministerial Direction No. 65, which outlines how the character test is to be applied. It noted that criminal conduct and general conduct are not mutually exclusive, and that behaviour in immigration detention is significant in assessing a person's character and the risk of reoffending. The Tribunal found that Mr Sau was actively involved in a very serious assault on another detainee, including stomping on the victim's head twice as he lay on the ground, resulting in visible injury. This conduct was deemed to weigh heavily against the exercise of discretion to revoke the visa cancellation.