Tera Euna v Minister for Immigration and Border Protection

This matter concerned the review of a decision not to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The cancellation was triggered by the applicant's convictions in Bega Local Court on 17 February 2015 for Common Assault and Armed With Intent to Commit Indictable Offence, for which he received concurrent sentences of 12 months imprisonment. The applicant, a New Zealand citizen who had resided in Australia since 1991, sought revocation of the cancellation, arguing he passed the character test or that other reasons warranted revocation. The Tribunal was constituted by Senior Member Mrs J C Kelly.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined in section 501 of the Migration Act 1958 (Cth), and if not, whether there was another reason why the visa cancellation decision should be revoked. This involved considering the applicant's criminal history, including the 2015 convictions and numerous prior offences dating back to 1992, and assessing the risk of future harm to the Australian community. The Tribunal also considered the best interests of minor children, although this was not a central focus of the applicant's case or the Tribunal's findings.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record as defined by section 501(7)(c) of the Act. This conclusion was based on the applicant's convictions for Common Assault and Armed With Intent to Commit Indictable Offence in 2015, as well as a lengthy history of other offences including common assault, breach of bail, wilful damage, and driving offences. The Tribunal rejected the applicant's claims that his sentences were reduced on appeal, finding that while his non-parole period was adjusted, his sentences remained unchanged. Furthermore, the Tribunal found the applicant's evidence regarding his use of an alias to be contradictory and not consistent with police records, reinforcing the assessment of his character. The Tribunal was not satisfied that there was another reason to revoke the cancellation decision, concluding that the protection of the Australian community from criminal conduct was paramount.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.