Tribunal: Deputy President Jan Redfern and Senior Member Michael Ison
A delegate of the Minister for Immigration and Border Protection cancelled the applicant’s Subclass 444 visa because they were satisfied the person may pose a risk to the safety of the Australian community. This reason for cancelling a visa is one of many found in section 116 of the Migration Act 1958 (the Act). The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision. The AAT affirmed the decision on 9 July 2018.
The applicant was a 47 year old New Zealand citizen who had lived in Australia since 2001. The applicant was convicted of assault, theft and unlawful imprisonment relating to an incident in 2016. At the time of the review of the decision, the applicant was also awaiting trial for charges of kidnapping and false imprisonment relating to a different incident in 2015.
The Minister (or their delegate) is able to cancel a visa under two different sections of the Act: section 116 and section 501. The applicant questioned the fairness of the cancellation of their visa under section 116.
The AAT clarified the key differences between the two sections. Both section 501 and section 116 give the Minister (or delegate) power to cancel a visa where there has been proven or alleged criminal misconduct. Broadly, section 501 requires a more serious level of offending and a higher level of satisfaction about the risk. Section 501 allows the Minister (or a delegate) to cancel a visa if a visa holder does not pass the ‘character test’ and lists a variety of reasons why someone may not pass the character test. Additionally, unlike section 116, there are directions issued by the Minister that a decision maker must take into account when considering to cancel a visa under section 501.
Section 116 is a more general visa cancellation power that can be used when a visa holder does not satisfy the reasons given in section 501. A permanent visa cannot be cancelled and there are no considerations that must be taken into account when a decision maker is considering to cancel a visa under section 116. However, the Department developed guidelines known as Procedures Advice Manual 3 (PAM3) – General visa cancellation powers, which may be considered by a decision maker.
There are different review processes and consequences depending on which section is used to cancel a visa. In both instances, the visa holder can appeal the cancellation decision to the AAT. If section 501 is used then the visa holder will be limited, or disallowed, from making a further application for a visa. If section 116 is used then further applications are not limited.
One reason, under section 501, that a visa holder may not pass the character test is if they have a ‘substantial criminal record’ as defined in the Act. In this case, the applicant did not have a ‘substantial criminal record’ but, as stated above, the delegate decided that the more general powers of section 116 were satisfied.
Section 116 sets out a two-step process. First, the AAT must decide whether one of the reasons for cancellation listed in section 116 applies to the case. If a reason applies, then the decision maker has to consider whether the visa should be cancelled. This is when the decision maker uses their discretion and may take into account the Department’s PAM3 guidelines.
In this matter, the AAT agreed with the original decision maker and was satisfied that the applicant is or, at the very least, may be a risk to the safety of the Australian community. The AAT found that the serious nature of the applicant’s convictions weighed against him. The AAT took into account, amongst other things, the sentencing remarks of the Judge in relation to the applicant’s 2016 convictions.
Because cancellation under section 116 is not mandatory, the AAT had to decide whether to exercise the discretion to cancel the visa. The AAT took into account the relevant PAM3 guidelines and concluded that the visa should be cancelled. The AAT acknowledged that the applicant and his family would experience hardship if they were separated and that there may be potential legal consequences arising from the cancellation. However, these considerations did not outweigh the factors in favour of the visa remaining cancelled in the circumstances of this case.
Read the full written decision on AustLII.