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Tribunal: Senior Member Theodore Tavoularis

A delegate of the Minister for Home Affairs decided not to revoke the cancellation of the applicant’s permanent (Class BF) visa. On 1 June 2018, the Tribunal affirmed this decision.

The applicant was born in the United Kingdom in 1971 and arrived in Australia with his parents in 1973. He never became an Australian citizen, although his entire family including his parents, surviving grandparents, minor daughter, brother, uncles and aunts all reside in Australia.

The applicant was convicted of approximately 180 offences committed between 1989 and 2017 and has had a significant issue with drugs. A delegate of the Minister cancelled the applicant’s visa on the basis that he had a substantial criminal record.

Under section 501 (3A) of the Migration Act 1958 (the Act) the Minister, or his delegate, must cancel a visa if the holder does not pass the character test because they have a substantial criminal record and they were serving a sentence of imprisonment. The applicant was sentenced to serve two years in prison and therefore had a substantial criminal record within the meaning of section 501(7) of the Act. The applicant did not pass the character test and his visa was cancelled by a delegate of the Department of Home Affairs. The applicant requested that the decision be revoked and a delegate of the Minister for Home Affairs decided not to revoke the cancellation.

The Tribunal may revoke the decision to cancel a visa if satisfied there is a reason to do so.[1] A Ministerial Direction provided by the Minister of Immigration and Border Protection (now Minister for Home Affairs) guides the Tribunal when deciding whether there is a reason the original decision should be revoked. The Ministerial Direction provides certain factors the Tribunal must take into account, namely ‘primary’ and ‘other’ considerations. The Ministerial Direction requires the Tribunal to consider how each of the considerations applies to the applicant’s circumstances, determine the amount of weight to be given to each and then balance the considerations to reach a decision. Primary considerations should generally be given greater weight than the other considerations,[2] but this must be assessed on a case-by-case basis.[3]

The first primary consideration relates to the protection of the Australian community. The Tribunal found that the nature of the applicant’s criminal conduct was serious. Although the Tribunal found that most of the applicant’s offending could be tied to his long-time drug use, his addiction did not detract from the overwhelming length of his criminal record. The sheer volume of offending by the applicant weighed heavily against the revocation of the cancellation of the visa.

The applicant claimed to be drug free for 11 months at the time of the decision, but could not point to any concrete reason that would prevent him from relapsing. The Tribunal found that there was a high likelihood that the applicant could further engage in criminal conduct. He had not provided any corroborating evidence that he had participated or was successful in any drug rehabilitation programs.

The second primary consideration concerns the best interests of minor children. The applicant has an Australian citizen daughter born in 2012. The applicant stated at hearing that he has not seen his daughter since late 2013, but has kept in regular phone contact with her. The Tribunal found that this consideration weighed in favour of revocation, but its weight was lessened by the lengthy absence of the applicant in his daughter’s life, the negative role for her due to the high risk of re-offending and the maintenance of his relationship with his daughter through telephone.

The third primary consideration the Tribunal was required to consider was the expectations of the Australian community. The Tribunal concluded that this consideration weighed against the revocation of the cancellation due to the volume of the applicant’s criminal record, particularly in the circumstances where he committed acts of domestic violence and stalking in the past.

The Ministerial Direction provides for five ‘other’ considerations to be taken into account. Of these, the Tribunal found that there was insufficient evidence to make an assessment of the impact on the applicant’s victims, and that there were no issues relating to Australia owing any non-refoulement obligations to the applicant.

The Tribunal found that the strength, nature and duration of the applicant’s ties to Australia were substantial. The applicant resided here since he was two years old and his entire family lives here. The Tribunal found this weighed strongly in favour of revocation of the cancellation of the visa.

The impact on Australian business interests was also considered but given only minor weight.

The Tribunal also considered the extent of impediments if the applicant was removed from Australia and sent back to the United Kingdom. It found that while the Applicant would lose the support networks he has built in Australia, this must be balanced against the cultural similarities between Australia and the United Kingdom. The Tribunal concluded that this consideration weighed neither in fur oavof not against revocation.

The Tribunal balanced the considerations above and concluded the correct or preferable decision was to not revoke the cancellation of the applicant’s visa.

Read the full written decision on AustLII.

[1] Subsection 501CA(4) of the Migration Act 1958

[2] Direction 65, paragraph 8(4)

[3] Suleman v Minister for Immigration and Border Protection [2018] FCA 594.