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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant did not pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to revoke the visa cancellation under section 501CA(4) of the *Migration Act 1958* (Cth) should be exercised.

The Tribunal was tasked with considering the primary considerations outlined in Ministerial Direction No. 99, specifically the protection of the Australian community. This involved assessing the nature and seriousness of the applicant's past conduct and the risk to the community should further offences be committed. The applicant's criminal record included offences such as assault occasioning actual bodily harm, contravening a prohibition or restriction in an apprehended violence order, and stalking or intimidating with the intent to cause fear of physical harm. The Tribunal also had to weigh the applicant's personal circumstances, including his long residence in Australia, the presence of his young children, his strong family and social ties, and his remorse, against the seriousness of his offending and the risk he might pose.

In its reasoning, the Tribunal noted that the applicant had been sentenced to a term of imprisonment of 12 months or more, which established he had a substantial criminal record and therefore did not pass the character test. The Tribunal considered the sentencing remarks of Magistrate Price, which detailed the applicant's admitted conduct of spitting on a victim and making threats. While the applicant provided a different version of events during his evidence, the Tribunal found his admissions to police and the magistrate's findings persuasive. The Tribunal acknowledged that the offences were "relatively short lived" and below mid-range in seriousness. Despite the applicant's submissions regarding his remorse, his changed circumstances, and the impact of deportation on his family, the Tribunal ultimately found that the requirements for revoking the visa cancellation were not met. The Tribunal affirmed the original decision to refuse to revoke the visa cancellation.