Visa Applicant sentenced to a term of imprisonment resulting in Visa Cancellation

RZMW (“the Applicant”) arrived in Australia on 4 November 2004 on a refugee (subclass 200) visa. On 13 February 2017, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. The Applicant subsequently applied for this cancellation to be revoked. On 18 September 2018, a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) refused to revoke the cancellation of the Applicant’s visa. The Applicant has applied to the Tribunal to reconsider this decision.

The issue in this case

Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked or in other words, whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.

What does the Law say? 

Pursuant to s 501CA(4) of the Migration Act the Minister is able to revoke the decision to cancel the Applicant’s visa under s 501(3A) of the Act.S501CA(4) provides that:

The Minister may revoke the original decision if:

(a)        the person makes representations in accordance with the invitation; and 

(b)        the Minister is satisfied:

(i)         …; or

(ii)        that there is another reason why the original decision should be revoked.

How the tribunal decide?

The Tribunal considered the following:

(a)  The criminal and traffic history of the applicant;

(b)  The nature and seriousness of the applicant’s conduct to date;

(c)   The risk to the Australian community should the applicant commit further offences or engage in other serious conduct;

(d)  The nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct;

(e)  The likelihood of the non-citizen engaging in further criminal or other serious conduct; and

(f)   The best interests of minor children in Australia.

The Tribunal found that the applicant’s history of criminal conduct is one of escalating severity and demonstrates an absence of insight into his offending, together with a lack of respect for the authority of law enforcement. The Tribunal found that the applicant has also been sentenced to multiple terms of imprisonment, which it would appear has not had a deterrent effect, despite the best efforts of judicial officers imposing those sentences. Furthermore, the Tribunal found that the applicant has been warned about the consequences of further offending in terms of his migration status, but the applicant committed further offences after the warning. The applicant has children in Australia. However, the Tribunal found that it is difficult to be convinced that there is any likelihood that the applicant will play an active and positive role in any of the lives of his four children. The Tribunal affirmed the decision under review and decided that the Tribunal cannot exercise the discretion to revoke the cancellation of the applicant’s visa.

Key takeaways

In this case, the Tribunal states that is has long been established that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served (In this case, the applicant was sentenced to two and a half years’ imprisonment, but the sentence was suspended after the applicant served roughly six months’ imprisonment).

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