Criminal offences can be a reason for visa cancellation

RZMW and Minister for Home Affairs (Migration) [2018] AATA 4620 (11 December 2018)

Brisbane – The Applicant arrived in Australia from Liberia aged 17 years in 2004 on a refugee visa. In 2017, the Applicant’s visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) based on that fact that they had been sentenced to a term of imprisonment of more than 12 months. The Applicant then applied for the cancellation of their visa to be revoked. In September 2018, a delegate of the Minister refused to revoke the cancellation of the Applicant’s visa. The Applicant then applied to the Administrative Appeals Tribunal (AAT) to review the decision. 

At the AAT, the Applicant was found not to pass the character test because they had a significant criminal record. For migration law purposes, a sentence to a term of imprisonment of 12 months or more is taken to be a significant criminal record. 

After finding that the Applicant did not pass the character test, the AAT then moved on to the next mandatory step – to consider the relevant provisions for discretionary cancellation set out in Ministerial Direction 65. 

The provisions of Direction 65 considered by the AAT included the protection of the Australian community. When considering the protection of the Australian community the Tribunal looks at the Applicant’s criminal history and traffic history. The Applicant had committed a number of serious criminal offence over 13 years, including assault and breaching a domestic violence order. The AAT stated that these offences were serious, frequent and demonstrated a disrespect for authority and law enforcement. 

The AAT also considered the likelihood of the Applicant reoffending. The AAT thought this was likely because of the Applicant’s alcohol abuse, his failure to participate in rehabilitation and that he had ignored two warning letters sent by the Minister concerning his criminal conduct. 

Direction 65 also required the AAT to consider the best interests of the Applicant’s five children aged between one and 12 years old. The AAT found that the Applicant did not spend much time with his children, and had no active interest in them. The AAT also considered whether the mothers fulfilled the parental roles, the Applicant’s domestic violence history and his ability to contact them from Liberia if sent home. 

The final main consideration was the community’s expectations. Despite what the Applicant’s siblings and current partner stated, the AAT found that, given the Applicant’s serious criminal history, the community would expect the Applicant’s visa to be revoked. 

Although the Applicant was a genuine refugee when he arrived in Australia 14 years ago, he admitted that he was no longer under threat of harm. There was no reason preventing his return.

Due to all these considerations, the AAT agreed with the decision to revoke the cancellation of the Applicant’s visa. The Applicant’s visa remained cancelled. 

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