Mandatory Visa Cancellation Decision Revoked – Materials Useful to Discuss on Community Expectations

Case summary: Shortland and Minister for Immigration [2019] AATA 5604 (24 December 2019)

Background Facts of the Applicant

The Applicant at the Tribunal is a New Zealand citizen who held a Class TY Subclass 444 Special Category Visa. He has been in Australia since August 2004 when he was 15 years of age.

The Applicant has been with his partner since 2007 with whom he bears three children, two sons and a daughter who are all under the age of 18.

In October 2017, the Applicant was convicted on three counts of Sexual Intercourse without Consent and sentenced to two years imprisonment on each count. In March 2018, that sentence was discounted to two years imprisonment with a non-parole period of 15 months.

• Since his imprisonment is full-time more than 12 months, he did not satisfy the character test under s501(6) of the Migration Act (“the Act”). As a result, his visa was subject to mandatory cancellation under s501(3A) of the Act in May 2018.

• In July 2018, the Applicant requested for revocation but delegate of the Minister refused to revoke the Mandatory Visa Cancellation under s501CA(4) of the Act.

• In October 2019, the Applicant lodged a review application at the Administrative Appeals Tribunal (“the Tribunal”).  The matter was heard by the Tribunal at a hearing in Sydney on 2 and 3 December 2019.

The guiding principle behind considering whether to revoke the cancellation decision is Ministerial Direction No.79.

• Point of interest in Ministerial Direction No.79 for the Applicant is Part C whether the mandatory cancellation of a non-citizen’s visa will be revoked.

Key points to discuss

• The Applicant got a colorful criminal background which was not in dispute

• The Applicant submitted statutory declaration outlining his remorse and responsibility for offending towards his own family, his parents and siblings. In addition, he added that he had not consumed alcohol since 2014 and will continue to abstain from drinking in the future

• The Applicant applied for a course to address violent behavior, emotional intelligence and cognitive behavior during his time at Villawood. He also expressed to the Tribunal that if he were to re-enter the community, he wants to do an alcohol and addiction courses. His partner, parents and siblings are all supportive of him and encouraging him to seek counseling which he has found very helpful.

• The Applicant has future employment lining up.

• If he were to return to New Zealand, he would have to start his life from zero as he has been only living in Australia since he is 15 years of age. He does not have friends or any relatives in New Zealand.

• The Applicant also discussed potential separation with his kids and the impact on them. The Applicant submitted psychological reports showing anxieties inflicted on kids due to his visa circumstances.

Primary Consideration A of Part C – Protection of the Australian Community.

• There is no dispute about the nature and seriousness of the Applicant’s conduct.

• For the likelihood of the Applicant’s tendency to engage in further criminal or other serious conduct, the Applicant submitted evidence such as support letters from family, psychological reports, sentencing judge’s remarks, the fact that the Applicant has already secured an offer of employment, the fact that he has enrolled in courses relating to alcohol consumption, and the fact that he has stopped drinking.

• Despite the above evidence, the fact that the Applicant’s conduct was serious in nature, Primary Consideration A on balance weighs against the revocation of the visa cancellation.

Primary Consideration B – Best Interest of minor children in Australian affected by the decision

• This weighs heavily in favor of the revocation of the visa cancellation decision due to his three kids who are under 18.

Primary Consideration C – Expectation of the Australian Community

• Case A: Justice Mortimer – “In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

• Case B: Justice Bromwich – The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community.

• Case C: Justice Perry – ‘narrow approach’ – Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.

• Case D: ‘broader approach’ used in Case E as an authority that “the Government’s views regarding the expectations of the Australian community must be given due regard; and so must all other circumstances which are relevant in a particular case.”

• So in this case, the Tribunal member goes with the authority adopted in Case D

o   (-) The Applicant has breached numerous Australian laws and judicial orders specifically serious offences involving sexual offences against a woman, which should generally result in the cancellation of a visa;

o   (+) The Applicant has been living in Australia since he is 15 years of age.

o   (+) other factors relevant to determining the expectation of the Australian community are:

§  Consequences on Australian wife and kids

§  Consequences on Australian kids who are under 18

o   In light of the above, Primary Consideration C on balance weights in favor of the revocation of the Mandatory Visa Cancellation.

Other Considerations

• Non-refoulement – the Applicant does not have a claim for this

• Strength, nature and duration of ties – yes, been in Australia since he is 15 years of age, close family bond in Australia with Australian partner and kids. His parents are also in Australia. He has a close family relationship with his wife’s parents and siblings.

• Impact on Australian business interests – not discussed

• Impact on victims – not discussed

• The extent of impediments if removed from Australia – yes due to ties to Australia and the fact that he does not have any friends or family in New Zealand and the fact that he needs to start his life from zero if he moves back

Conclusion

• There is another reason why the Mandatory Visa Cancellation decision should be revoked, and the decision to refuse to revoke the cancellation decision is to be set aside. 

• The above shows that character cancellation can still be revoked and worth fighting for.

How Cam Agape Henry Crux Help You

if you have been subject to mandatory visa cancellation in Australia, please do not hesitate to contact us. Our team of immigration lawyers and registered migration agents are highly trained to deal with complex matters. You can book a Migration Planning Session to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.

We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.