Tribunal: Senior Member Don Morris

The applicant’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection. On 19 January 2018, the Administrative Appeals Tribunal set aside the decision and substituted that the discretion not to cancel the visa should be exercised.

The applicant was born in Fiji and is a Fijian citizen. He migrated to Australia with his parents and siblings in 1993 when he was aged fourteen. He has a wife and four young children, all of whom are Australian citizens.

Under section 501 of the Migration Act 1958 the Minister (or his delegate) may cancel a visa if the holder has a substantial criminal record. This is part of a character test. It is not in contest that the applicant fails the character test. The applicant had been sentenced to terms of imprisonment totalling more than twelve months and therefore the Tribunal found that he has a substantial criminal record within the meaning of section 501(7) of the Act.

Ministerial Direction No. 65 provides the Tribunal the power to review the decision and exercise discretion to revoke the cancellation of the visa after considering certain factors. These factors are split into ‘primary’ and ‘other’ considerations. Below are the relevant ‘primary’ and ‘other’ considerations deliberated by the Tribunal and the weight given to each.

The Tribunal first dealt with the primary considerations starting with the nature and seriousness of the applicant’s conduct. The applicant had committed a number of driving, robbery and other offences and had breached conditions of suspended sentences which led to the restoration of a sentence.  He had served a term of imprisonment for breaching an Intervention Order under the Family Violence Protection Act 2008 (Vic). The Tribunal noted that in the event that led to the Intervention Order, both parties were intoxicated and there was no physical violence or damage to property. The Tribunal stated domestic violence in any form was viewed dimly and this conduct was wholly unacceptable because it threatened and exposed his young children to a traumatic situation at an impressionable age, potentially making them fearful.

The second primary consideration was the risk to the Australian Community should the applicant re-offend. The fact the applicant was a repeat offender, attending court for multiple drink driving offences weighed substantially against him. The Tribunal noted the court rightly imposed a long driving ban. The Tribunal also took into account the applicant’s efforts to improve his conduct, evidence of his rehabilitation, that he had learned a trade, and positive accounts of the applicant provided by two former employers, a local pastor and his sister. This all counted in his favour.

The third primary consideration was the best interests of minor children in Australia affected by the decision. The Tribunal accepted the applicant was the sole financial provider to his family and the cancellation of his visa would have a significant impact on his children. The Tribunal found that this primary consideration weighs strongly in the applicant’s favour.

The last primary consideration was the expectations of the Australian Community. The Tribunal emphasised that the Australian community expects non-citizens to be law-abiding and that non-citizens are liable at any time to the revocation of their permission to remain in this country. The applicant had a bad drink-driving record but the Tribunal took into account that he has committed no such offences since March 2013, a period of almost five years.

The Tribunal then considered the ‘other’ considerations.[1] The applicant has strong family ties to Australia and has lived here most of his life. Most of his relatives live in Australia.  He has contributed positively to the community as a church youth worker and the cancellation of his visa will have a significant impact on his direct and extended family.

The Tribunal carefully considered the evidence before it and stressed that the Ministerial Direction stipulates one or more primary considerations may outweigh other primary considerations. The Tribunal decided that the primary consideration of the effect on minor children of the cancellation of the Applicant’s visa does outweigh those other ‘primary’ and ‘other’ considerations in this matter. The Tribunal concluded that the discretion available to the delegate not to cancel the Applicant’s visa should be exercised in his favour.

Read the full written decision on Austlii.

 

[1] The relevant secondary consideration was the strength, nature and duration of ties (Paragraph 10(1)(b)).