Umi v Minister for Home Affairs

This matter concerned an application by Mr Umi, a citizen of Samoa, to the Administrative Appeals Tribunal for a review of the Minister's decision not to revoke the mandatory cancellation of his visa. Mr Umi had been in Australia since 1995 and held various visas, including a permanent partner visa, and had married an Australian citizen. However, he had a substantial criminal record spanning 14 years, including convictions for armed robbery, making threats to kill, and unlawful assault, for which he was serving a period of imprisonment. His visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to his criminal conduct.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory visa cancellation under section 501CA(4)(b)(ii) of the Act. This involved an evaluative process of considering factors for and against revocation. The Tribunal had regard to the nature and seriousness of Mr Umi's offending, including multiple violent offences, his frequency of offending, and his conduct towards law enforcement officers. It also considered the potential harm his recidivism could cause to the Australian community, the impact on his children, his family and social ties in Australia, and the impediments he would face in returning to Samoa.

The Tribunal reasoned that Mr Umi's criminal offending was serious and demonstrated a disturbing propensity for violence and a lack of respect for the law. Despite previous opportunities for rehabilitation, he had consistently re-offended, and his conduct during his current sentence did not indicate insight or an intention to live a law-abiding life. Consequently, the risk of reoffending and the potential harm were considered an unacceptable risk to the Australian community. While acknowledging Mr Umi's love for his children and their reciprocal feelings, the Tribunal found this consideration weighed less heavily due to his sporadic and unreliable involvement in their lives since his imprisonment. The Tribunal also noted his strong family and social ties in Australia and the difficulties he would face in Samoa, which weighed in favour of revocation.

Ultimately, the Tribunal affirmed the decision not to revoke the visa cancellation. It concluded that Mr Umi's serious and prolonged criminal conduct was at odds with the reasonable expectations of the Australian community, and the risk of harm from his recidivism was too great. Therefore, the discretion to revoke the mandatory cancellation was not exercised.