Possible Ground for Revoking Mandatory Cancellation Due to Substantial Criminal Record
The decision in this case (name redacted for confidential purposes) held that under certain circumstances, mandatory cancellation of an applicant’s visa under subsection 501(3A) of the Migration Act 1958 (‘the Act’) may be revoked.
Why Did the Applicant’s Partner Visa Got Cancelled?
In this case (name redacted for confidential purposes) , the applicant, a Cambodian national was granted a Partner visa (Subclass 100). The Applicant had incurred significant debt from his gambling addiction in Sydney from people he had met at the club where he gambled. He was later told by a group of men that he either needed to repay the loan as soonest possible or he could deliver a package from Cambodia for the group instead.
Upon carrying the package from Cambodia, the applicant was arrested by the Police at the Perth Airport for carrying a significant amount of drugs with him. He had been held in custody since his arrest on 14 July 2014 and was later sentenced to prison for five years on 22 January 2015.
The Applicant’s Partner Visa was cancelled on 26 June 2017 under s 501(3A) of the Act because the delegate decided that the Applicant had a substantial criminal record under s 501(7)(C) and therefore did not meet the character requirement. Subsequently, the Applicant sought a review from the Tribunal to review the delegate’s decision. The Tribunal set aside the delegate’s decision and decided to revoke the mandatory cancellation of the Applicant’s visa.
Factors the Tribunal Took into Consideration Before Deciding to Revoke the Mandatory Partner Visa Cancellation
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
Protection of the Australian community from criminal or other serious conduct;
The best interests of minor children in Australia, and;
Expectations of the Australian community.
Other considerations may also be taken into account when relevant. These considerations include (but are not limited to):
International non-refoulement obligations;
Strength, nature and duration of ties;
Impact on Australian business interests;
Impact on victims;
Extent of impediments if removed
Tribunal’s Reasoning to Revoke the Partner Visa Cancellation
As part of the decision-making process, the Tribunal considered that he had engaged in all rehabilitation courses available to him while he was in prison and had attempted to gain new skills to assist him to find work so he could go back to live in the Australian community. Based on those facts along with supporting evidence, the Tribunal accepted that the Applicant was genuinely remorseful for his conduct and he was genuine about his commitment to not re-offend or engage in other serious conduct.
The Tribunal considered that the Applicant had formed a close bond with all his family’s children, and particularly with his two nine-year Australian grandchildren, to who he was considered to be a fatherly figure and if the applicant was to be removed from Australia, those two grandchildren would also be leaving with him as he was the sole financial supporter of those grandchildren.
The Tribunal considered the fact that if those two grandchildren were to live in Cambodia, they would not enjoy the same level of education, housing and health care there would be available to them in Australia. Considering the negative impacts on the Sponsor which included and not limited to potential marriage breakdown, the Tribunal added weight to the case for revoking the mandatory cancellation of his Partner visa. Therefore, the Tribunal considered all those factors to be in favour of the Applicant .
Overall, the Tribunal weighed the interests of the Australian minor children involved, the negative impact on Mr Sam’s immediate family and the impediments he would face in Cambodia (i.e. being the only person left in his original family) and reached the conclusion that the correct and preferable decision which was to revoke the mandatory cancellation of the Applicant’s visa.
The Tribunal primarily considered that revoking the cancellation of visa would not harm the Australian community, as the Tribunal found that the risk of the Applicant reoffending is low and is an acceptable risk for the Australian community.
How Can Agape Henry Crux Help
If you currently hold a visa in Australia and the visa was cancelled because of substantial criminal record, please contact us immediately.
Our immigration lawyers are well trained to handle highly complex matters. You can book a consultation with one of our lawyers to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
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