Tumaialu and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by the Applicant against the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of his visa. The Applicant had a substantial criminal record, including serious violent offences such as robbery in company with actual violence and armed robbery in company, committed between April and July 2014. The Minister's delegate had determined that the Applicant did not pass the character test and that the mandatory cancellation of his visa should not be revoked. The Applicant contended that the decision not to revoke the cancellation was incorrect and/or not preferable. The case was heard by Senior Member Bill Stefaniak AM RFD.

The primary legal issue before the Tribunal was whether to revoke the mandatory visa cancellation under section 501CA of the *Migration Act 1958*. This required the Tribunal to consider the primary considerations outlined in the Direction, 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. Additionally, the Tribunal was required to consider "other considerations," which included the strength, nature, and duration of the Applicant's ties to Australia. The Tribunal had to weigh the seriousness of the Applicant's offending against these factors to determine if revocation was warranted.

The Tribunal reasoned that while the Applicant's criminal conduct was serious, particularly the violent offences, the risk of reoffending was assessed as low to medium. Significant weight was given to the Applicant's strong ties to Australia, having lived there since the age of six and having no knowledge of any other home. The Tribunal also acknowledged the substantial support network available to the Applicant upon release, including his mother and a community organisation committed to assisting him. The Tribunal found that while the expectations of the Australian community might lean towards deportation given the seriousness of the offences, these expectations could be tempered by the Applicant's long-standing ties to Australia and the potential for rehabilitation, especially with the provided support.

Ultimately, the Tribunal determined that the decision under review was not the correct or preferable one. The decision cancelling the Applicant's visa was set aside, and the visa cancellation was revoked under section 501CA(4) of the *Migration Act 1958*.