The newly introduced mandatory visa cancellation laws have seen an unprecedented number of visa cancellations on character grounds. Prior to December 2014, the Minister of Immigration and Border Protection (‘the Minister’) had a discretionary power to cancel a non-citizen’s visa if satisfied that the person did not pass the character test. As of December 2014, the Minister must cancel a person’s visa if satisfied that they do not pass the character test.

Amendments to the Migration Act came about due to increased national security risks. Since its introduction, hundreds of people have had their visa cancelled and been deported under the new laws, with the majority of these being New Zealand citizens. Under the Immigration Detention and Community Statistics Summary of 31 July 2016, there were 503 people in immigration detention centres in Australia and offshore who have had their visas cancelled, 206 of these being New Zealand citizens.

The Law

A person does not pass the character test if it is established that he or she has a substantial criminal record. A person has a substantial criminal record if the person has been:

  • sentenced to death;
  • sentenced to imprisonment for life;
  • sentenced to a term of imprisonment of 12 months or more(suspended sentences are considered for the purposes of the character test);
  • sentenced to 2 or more terms of imprisonment, and the total of those terms is 12 months or more;
  • acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
  • found by a court to not be fit to plead but the court has nonetheless found that, on the evidence available, the person committed the offence; and as a result, the person has been detained in a facility or institution.

Revocation of Visa Cancellation

A non-citizen who has had their visa cancelled may apply to the Minister for a revocation of the decision. In order to successfully request revocation of the visa cancellation, the Minister must be satisfied that the person makes representations in accordance with the invitation, and either the person passes the character test, or there is another reason why the original decision should be revoked.

When looking at whether to revoke a visa cancellation, primary considerations include:

  • Best interests of minor children in Australia affected by the decision; and
  • Protection of the Australian community from criminal or other serious conduct, including the nature and seriousness of the conduct and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct;
  • Expectations of the Australian community.

Other considerations include international non-refoulement obligations including Australia’s obligations under international treaties and conventions; strength, nature and duration of ties to Australia; impact on Australian business interests; impact on victims if known; and extent of impediments if removed.

Judicial Consideration

Recent decisions of the Administrative Appeals Tribunal have provided guidance as to the position of the Tribunal in relation to various types of offences, and three key trends have emerged:

Non-citizens who frequently break the law

In the Administrative Appeals Tribunal case of Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693, the applicant had an extensive criminal history. Over a 29-year period he had 127 criminal offences, 81 of which involved drug offences. The applicant committed the offences while in the grip of a drug addiction and while unemployed. He had two warnings from the Minister about his criminal offending with the latest being in April 2010. After his warning, he continued to offend which lead to the cancellation of his visa in March 2015.

Despite his extensive criminal history, the applicant’s visa cancellation was revoked. The two main reasons for the revocation was that the seriousness and frequency of his offending declined after he received a warning from the Minister about the cancellation of his visa in April 2010. This was found to be consistent with his assertion that he was trying to turn his life around. Secondly, the offences committed by the applicant after 2010 were the result of an addiction, of which he did not seek rehabilitation for.

Serious offences in isolation

Another AAT case is BPWZ and Minister for Immigration and Border Protection (Migration) [2016] AATA 557. In this case the applicant was convicted of armed robbery, making a threat to kill, false imprisonment and obtaining property by deception and sentenced to 42 months imprisonment. All these offences related to one night of offending.

The applicant’s visa cancellation was revoked. The Tribunal took into account that alcohol was involved, the applicant was depressed following the breakdown of his marriage, and had two minor children in Australia who would benefit from his direct involvement in their lives. The applicant also had no prior history of offending, showed good prospects of rehabilitation, and he was clearly supported by family and friends, whose support further reduced any risk of him reoffending.

Violent and sexually based crimes

In the case of Uelese and Minister for Immigration and Border Protection (Migration) [2015] AATA, the applicant had 12 criminal offences, which was much less than the applicant in the abovementioned case of Anaki. Two of his convictions resulted in his serving terms of imprisonment, which were assault occasioning actual bodily harm and recklessly causing grievous bodily harm in company.

The applicant’s conduct was viewed seriously as it involved physical violence, including to his partner and his partner’s mother on several occasions. The Tribunal considered that, based on the violent nature of his offending, a repetition of the offences would certainly involve a degree of physical harm to the victims, which could have the possible consequence of death. Due to this significant risk to the Australian community, the visa cancellation was not revoked. The risk of harm was too high for the Australian community to accept.

While the mandatory visa cancellation laws have seen a much stricter approach to the handling of non-citizens’ visas who break the law in Australia, the revocation of visa cancellations are not unheard of and have been commonly made.