Tribunal: Senior Member Dr Michelle Evans

The applicant was a 35 year old man born in New Zealand who entered Australia in 2005 on a Subclass 444 Special Category (Temporary) Visa. Between 2 March 2007 and 27 October 2015, he was convicted of a total of 28 offences with 11 of these offences being driving and traffic related. The remaining convictions included breach of a violence restraining order, common assault and assaulting a public officer. 

A delegate of the Minister for Home Affairs cancelled the applicant’s visa on 18 June 2018.

Under section 501 of the Migration Act 1958 (The Act) 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 was not in contest that the applicant failed the character test. The applicant was sentenced to several terms of imprisonment, which together amounted to over 12 months. Therefore, he had a substantial criminal record as defined by section 501(7) of the Act.

The applicant lodged an application to review the cancellation decision in the Tribunal. Although the applicant failed the character test, the decision maker (in this case, the Tribunal) is required to consider whether to exercise discretion to set the cancellation decision aside. It must consider a direction provided by the Minister for Immigration and Border Protection (Direction no. 65) that sets out certain factors to consider when reviewing the decision. These factors are split into “primary” and “other” considerations and the AAT’s application of these factors to the circumstances are set out below.   

The first “primary” consideration is the protection of the Australian community. This involves consideration of the seriousness of the applicant’s offences and the likelihood of re-offending. The AAT found that the applicant’s offending was serious. The AAT acknowledged that following the applicant’s last offence on 12 June 2014, the applicant did not commit any offences or other serious conduct. The AAT relied on the findings of a psychological report of the applicant to conclude that the applicant had a low to moderate risk of re-offending. This conclusion was supported by other evidence that pointed signs of significant rehabilitation on the applicant’s part.[1] The AAT’s conclusion on this primary consideration was that it weighed slightly in favour of cancelling the visa.

The second “primary” consideration is the best interests of minor children. The AAT found that the cancellation of the applicant’s visa would result in significant detriment to the applicant’s two sons, who were born in Australia. The AAT noted the applicant’s sons were very young and that they would benefit from having the support and involvement of a father in their upbringing as they enter their teenage years. The applicant submitted that he identified as an Indigenous Australian and so did his children. The applicant’s mother had ancestral ties to the indigenous people of Australia. The AAT was concerned that the cancellation of their father’s visa may have a detrimental impact on the children’s cultural identity and would negatively impact on their ability to actively participate in, and learn about their Australian Aboriginal culture and heritage. The AAT concluded that this consideration weighed heavily in favour of non-cancellation of the visa.

The final primary consideration is the expectations of the Australian community. The AAT acknowledged that the ministerial direction intends this “expectation” to favour cancellation of the visa in circumstances that involve failure of the character test.[2]

The “other” considerations that had the largest impact on the AAT’s decision included the strength and nature of the applicant’s ties to Australia and the hardship the applicant would face if his visa was cancelled. The AAT found that the applicant’s ties to the community were very strong. The applicant was born in New Zealand and had Maori heritage, however, the applicant’s evidence was that for the past five years he had primarily identified as an Aboriginal Australian after learning of his family’s ancestry through his maternal line. The applicant’s wife, although born in New Zealand, is an Australian citizen and his two sons were born in Australia. Cancellation of the applicant’s visa would have a detrimental impact on his wife and sons, both emotionally and financially. The applicant’s wife was also expecting their third child in May 2019, which further strengthened the applicant’s ties to the Australian community, as well as adding to the detriment that his wife would suffer if his visa were to be cancelled. The AAT concluded this weighed strongly in favour of the non-cancellation of the applicant’s visa

The AAT found that the applicant would suffer some hardship if he were returned to New Zealand, which weighed slightly in favour of non-cancellation of the visa. It appeared to the AAT that any family support available to the applicant and his wife if one or both of them were to return to New Zealand would be minimal.

Overall, the AAT found that the primary consideration of the best interests of the applicant’s children, and the other considerations, particularly the applicant’s ties to the Australian community, outweighed the factors in favour of cancellation of the visa.

The AAT set aside the decision and substituted a new decision to not cancel the visa. 

Read the full written decision on AustLII.

 

[1] Read the full list of evidence in paragraph 109 of the full decision

[2] See the discussion at paragraphs 133 to 138 of the full decision