Unu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Mr Unu to review the cancellation of his Class TY (Subclass 444) Special Category visa under section 501(2) of the *Migration Act 1958*. The primary dispute revolved around whether Mr Unu passed the character test, as defined in subsection 501(6) of the Act, and if not, whether the discretion to cancel his visa should be exercised. The decision was made by Member W Frost of the Administrative Appeals Tribunal.

The Tribunal was required to determine two key issues: first, whether Mr Unu met the criteria for passing the character test under the Act; and second, if he did not pass the character test, whether the Minister's discretion to cancel his visa under subsection 501(2) should be exercised. In considering the exercise of this discretion, the Tribunal was bound to apply Ministerial Direction No. 99, which outlines primary considerations including the protection of the Australian community, the strength of ties to Australia, and community expectations, as well as other relevant considerations such as the legal consequences of the decision and impediments to removal.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 99. While acknowledging Mr Unu's criminal offending, the Tribunal noted that these offences were not linked to any criminal organisation and had occurred over two years prior. Mr Unu provided evidence of his efforts to address personal issues, including alcohol and mental health concerns, and expressed a commitment to being a better person. The Tribunal also gave significant weight to Mr Unu's strong ties to Australia, including his long-term residence, his property ownership, and his relationship with his fiancée, who has no ties to New Zealand. The Tribunal considered that these factors, combined with Mr Unu's stated desire to remain in Australia and provide for his family, weighed against the cancellation of his visa.

Ultimately, the Tribunal set aside the decision to cancel Mr Unu's visa and substituted it with a decision not to cancel the visa under subsection 501(2) of the Act. The Tribunal expressed hope that Mr Unu would make the most of this opportunity to remain in the Australian community.