Revoking Australian Visa Cancellation Despite Having Substantial Criminal Record
The case of VFQY and Minister for Home Affairs is the latest example where the Tribunal decided that the correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
Why the Applicant’s visa was revoked in this case?
Under the law, the Minister must cancel a visa if satisfied that the applicant does not pass the character test because of a ‘substantial criminal record’. A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. In this case, the Applicant was serving a sentence of imprisonment of over 12 months.
Can a cancellation decision be revoked?
The Minister may revoke the decision to cancel the visa, if the applicant makes representations and satisfies the Minister that there is ‘another reason’ why the original decision should be revoked.
The Minister in this case did not see any reason to revoke the original decision. However, the Tribunal decided, as mentioned above, the preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
What are the “another reasons” found by the Tribunal in this case?
The Tribunal finds that the evidence suggests that the Applicant was easily influenced by others and he is not a sophisticated or necessarily hardened criminal. The threat of deportation is highly to prevent any re-offending by the Applicant. The Tribunal also considers the view of the Applicant’s daughter and mother. The Tribunal considers the past experiences of the Applicant where he experienced sexual abuse. The Tribunal finds that it is unlikely the Applicant will re-offend in circumstances which may result in him being removed from Australia and his family members. The Tribunal also finds that the risk of the Applicant re-offending is low, and powerful family issues will keep the Applicant from re-offending. The Tribunal finds that a fair minded ordinary Australian would expect the Applicant to be given a chance to continue his life in Australia in the circumstances of this case. The Applicant has lived in Australia for over 50 years and has significant and positive family ties in Australia.
Key takeaways
The Applicant in this case has been in and out of jail over the last 50 years in Australia. Furthermore, he has a substantial criminal record. However, for the above reasons, the Tribunal thought that the cancellation decision should be revoked.
If your visa has been cancelled on character ground, you may contact us by calling 02-72002700 or email our receptionist to book in a time at info@ahclawyers.com if you need any legal assistance.