Toelau Hohua and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Toelau Hohua for review of the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Hohua having a substantial criminal record, specifically being sentenced to a term of imprisonment of 12 months or more for the offence of Recklessly Cause Serious Injury. The court was required to determine whether there was any other reason why the mandatory visa cancellation decision should be revoked.

The court was required to consider the primary considerations outlined in Direction No 65, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. In assessing the protection of the Australian community, the decision-maker was to have regard to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should further offences be committed. Factors to be considered regarding the nature and seriousness of conduct included the sentence imposed, the frequency and trend of offending, and the cumulative effect of repeated offending. The court noted the established principle that a tribunal cannot go behind a conviction and examine the facts upon which it is based, with a conviction and sentence being strong prima facie evidence of the facts necessarily underlying them.

The applicant, Mr Hohua, sought revocation of the cancellation decision, citing his family ties in Australia, his desire to start a family, his history of community contribution through rugby league, and past experiences of abuse. He also expressed fear for his safety and lack of support if returned to his country of citizenship. However, the decision-maker found that these representations did not outweigh the mandatory grounds for cancellation, particularly the seriousness of the offence and the need to protect the Australian community. The court affirmed the decision not to revoke the cancellation.