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

This matter concerned an application for review of the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Applicant sought to have the cancellation decision revoked under section 501CA(4) of the Migration Act 1958 (Cth). The decision under review was made by the Minister for Immigration, Citizenship and Multicultural Affairs.

The primary legal issue before the court was whether the discretion to revoke the visa cancellation should be exercised, considering the Applicant's circumstances and the Ministerial Direction No. 99. This involved assessing the weight to be given to various factors, including the Applicant's ties to Australia, the impact on his family, his criminal history, and his prospects for rehabilitation. The court was required to determine if these factors, when weighed against the risk posed by the Applicant, warranted the revocation of the visa cancellation.

The court found that the Applicant was an unreliable witness, noting inconsistencies in his statements regarding his arrival in Australia and his connections to Fiji. While acknowledging the Applicant's stated exposure to childhood trauma and his engagement in rehabilitation programs, the court gave minimal weight to these factors due to the Applicant's lack of credibility. The court considered the Applicant's ties to Australia, including his mother and stepfather, and a current relationship, but found these connections to be complex and, in the case of his financial support capacity, questionable. Ultimately, the court affirmed the decision to cancel the visa, finding that the Applicant had not demonstrated sufficient grounds for revocation.