Tohi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr Tohi and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning the mandatory cancellation of Mr Tohi's Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Tohi failing to pass the character test due to a substantial criminal record. The central dispute was whether there was "another reason" why the original cancellation decision should be revoked, applying the principles outlined in Ministerial Direction No. 79.

The Tribunal was required to determine if the discretion to revoke the mandatory visa cancellation should be exercised. This involved an evaluative exercise under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), weighing factors for and against revocation in accordance with Ministerial Direction No. 79. The primary considerations examined were the protection of the Australian community and the best interests of any minor children affected by the decision.

The Tribunal reasoned that while Mr Tohi presented as a hard worker with strong family ties in Australia and expressed remorse for his offending, his criminal conduct was serious. He had driven a motor vehicle while heavily intoxicated, causing grievous bodily harm to a pregnant pedestrian. The Tribunal noted the significant moral culpability and abandonment of responsibility demonstrated by his actions. Crucially, the Tribunal found a lack of evidence of ongoing or professional rehabilitative efforts by Mr Tohi to address the underlying causes of his offending, despite his stated intention to participate in programs if directed. This absence of proactive rehabilitation, coupled with the seriousness of the offence, led the Tribunal to conclude that the primary consideration of protecting the Australian community weighed strongly against revoking the cancellation. The Tribunal also considered the best interests of Mr Tohi's young son, but this consideration did not outweigh the public interest in community safety.

Ultimately, the Tribunal affirmed the decision to cancel Mr Tohi's visa, finding that there was no other reason why the original decision should be revoked.