Usoalli and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Usoalii against the decision of the Minister for Immigration and Border Protection to refuse to revoke the cancellation of his Subclass 444 (Special category) visa. Mr Usoalii, a New Zealand citizen who had resided in Australia since 2002, had been convicted of aggravated break and enter in company when he was 16, and later of two counts of robbery in company, for which he received a four-year prison sentence. While in prison, he was also disciplined for two assaults, one of which resulted in a further custodial sentence. The court was required to determine whether there was another reason why the decision to cancel Mr Usoalii's visa should be revoked, considering the protection of the Australian community from criminal or other serious conduct.

The court's reasoning focused on the primary consideration of protecting the Australian community. It acknowledged Mr Usoalii's submissions regarding his family ties in Australia, his intention to care for his young son, and statements from a youth worker and a parish priest attesting to his remorse and potential for rehabilitation. However, the court found that the nature and seriousness of Mr Usoalii's conduct, particularly the viciousness of the assaults and the circumstances of the robberies in company, were very serious. Despite his stated intentions and the support he had received, the court was not satisfied that he had undertaken sufficient rehabilitation to mitigate the risk of re-offending to an acceptable level.

Applying the principles established in *Gaspar v Minister for Immigration and Border Protection*, the court considered the factors for and against revoking the cancellation in a single process. While acknowledging Mr Usoalii's desire to remain in Australia for his son, the court concluded that the risk of his re-offending, given the gravity of his past conduct, was too great to allow him to retain his visa. Consequently, the reviewable decision to affirm the cancellation of Mr Usoalii's visa was upheld.