Mandatory Visa Cancellation Due to Substantial Criminal Record
Prior to the December 2014 commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the Minister had the discretion to cancel the visa of a non-citizen who had been sentenced to (one or more) terms of imprisonment that totaled at least 12 months. However, given the amendments to the legislation since December 2014, there is a mandatory cancellation power for the Minister to cancel the visa of any non-citizens if he is satisfied, they have a “substantial criminal record. The non-citizen could seek to revoke the cancellation decision, if successful, a revocation decision has the effect as it the visa has never having been cancelled.
Background of the Applicant Who Faced Mandatory Visa Cancellation
In the case of MAH and Minister for Immigration and Border Protection (Migration) [2018] AATA 416, The non-citizen in question was an Iraqi Citizen who came to Australia on an unauthorized boat in November 1999. He was granted a permanent Resolution of Status (Class CD) visa in December 2010. The visa was cancelled in December 2016 under s 501(2) of the Migration Act. In his time in Australia, he had been convicted of at more than 20 offences and two of his recent offences results in suspended sentences of 12 months’ imprisonment which was classified under ‘substantial criminal record’.
Given the severe consequence, the cancellation has on a non-citizen in Australia, when considering the cancellation of the visa, both primary and other considerations are assessed by the delegate.
The “primary” considerations are:
(a) the protection of the Australian community;
(b) the best interests of minor children in Australia; and
(c) the expectations of the Australian community.
The other considerations include:
(a) the strength, nature and duration of the person’s Australian ties;
(b) the impact of visa cancellation on Australian business interests;
(c) the impact of any revocation decision on victims of the person’s conduct;
(d) applicable international non-refoulement obligations (in practical terms, the criteria in MigAct58 s 36(2)(a) & (aa)); and
(e) the nature and extent of any difficulties the person is likely to encounter if removed from Australia as a result of the visa cancellation decision.
Tribunal’s Decision
Despite, the applicant’s past convictions and sentences, the Tribunal looked into the fact that it is almost 10 years since any of his convictions have involved offenses relating to violence or apprehended violence. Even though his past offences together with his drug addiction, apparent social isolation and inability to work, his limited relationship connections with Australian residents and organisations point to a significant risk of his re-offending, the significance of that consideration was proportionally reduced by the length of time that the applicant has been in Australia.
Additionally, his apparently significant periods of employment in Australia, the length of himself holding the visa and his health issues weigh in favor of the visa not being canceled. Those considerations, together with the acknowledged difficulties that the applicant would be likely to encounter in obtaining and retaining health care in his original home country he has left more than 20 years ago, eventually outweigh the considerations for the revocation.
How Can Agape Henry Crux Help
If you have received a letter from the Department informing you that your visa has been canceled on character grounds, please contact us immediately as we have extensive experience in arguing complex cases like this.
Our lawyers are well trained to handle such complex issues. You can book one of our lawyers to seek professional advice by calling us on +61 2 7200 2700 or email us info@ahclawyers.com
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