Tuimalatu and Minister for Home Affairs (Migration)

The applicant, Mr Tuimalatu, sought the revocation of the mandatory cancellation of his visa. The dispute arose because Mr Tuimalatu did not pass the character test due to a substantial criminal record, specifically convictions for "Recklessly cause serious injury" and "Affray (common law)" for which he received a sentence of four years and six months imprisonment. The matter was heard by D. J. Morris SM.

The court was required to determine whether there was another reason why the mandatory cancellation of Mr Tuimalatu's visa should be revoked, pursuant to section 501CA(4)(b) of the Migration Act 1958 (Cth). This involved considering the principles outlined in Direction No. 79, which distinguishes between "primary considerations" and "other considerations," with primary considerations generally carrying more weight. The court had to assess the applicant's criminal history, his ties to Australia, the impact on his family, and any other relevant matters.

The court reasoned that while Mr Tuimalatu had significant ties to Australia, including a long period of residence since childhood and a partner and young children, these were to be weighed against the seriousness of his offending. The offending, which involved violence and weapons, was considered a primary consideration. The court noted that the trend of increasing seriousness of violent offending was a relevant contextual factor. Although Mr Tuimalatu expressed remorse and had undertaken rehabilitation programs, the court found that the seriousness of the offences and the potential risk meant that the mandatory cancellation should not be revoked.

The court set aside the decision to revoke the mandatory cancellation of Mr Tuimalatu's visa and substituted a new decision to refuse to revoke the cancellation.