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Tribunal: Deputy President J W Constance 

The applicant’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection. On 28 February 2018, the Administrative Appeals Tribunal set aside the decision and substituted that the decision to cancel the visa be revoked.

The applicant is a 27 year old citizen of Brazil who migrated to Australia with his family in 2004 when he was 14. He has been convicted of several offences in Australia including destroying property, contravening an apprehended violence order (AVO) and shoplifting. The most serious of his offences came in 2012 when the applicant was convicted of robbery armed with an offensive weapon. He was then also convicted of shoplifting. The applicant was sentenced to imprisonment for six months in relation to shoplifting and four years in relation to the robbery.

Under section 501 of the Migration Act 1958 the Minister (or his delegate) must 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 fails the character test. The applicant was sentenced to an aggregate of four years and two months imprisonment 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. Primary considerations should generally be given greater weight than the other considerations.Below are the relevant ‘primary’ and ‘other’ considerations deliberated by the Tribunal and the amount of weight given to each.

The first primary consideration is the protection of the Australian community from criminal or other serious conduct. The Tribunal acknowledged that the applicant’s conduct was very serious. Based on this, the Tribunal considered the risk to the Australian community would be significant should the applicant engage in further serious conduct and the Australian community would have a low tolerance for this. The Tribunal considered the applicant’s risk of re-offending to be low, with the most important factor being his strong bond with his daughter and his genuine concern that he be able to take an active part in her upbringing. Further, during his time in prison he completed courses dealing with drug and alcohol abuse, lifestyle choices and dealing with grief.  The applicant’s mother committed suicide within one or two days of his being incarcerated and he felt responsible for her death. A clinical psychologist assessed the applicant and concluded his history, psychometric test results, and demonstration of remorse, all support the notion that his offences were out of character and his chances of recidivism was “very low”. The Tribunal was satisfied that the need to protect the Australian community from the serious effects of misconduct weighs in favour of not revoking the cancellation of his visa, but that the risk is not such that this consideration should be given great weight.

The second primary consideration is the best interests of minor children in Australia affected by the decision. The representative for the Department of Immigration and Border Protection conceded that the best interests of the applicant’s daughter weigh in favour of revoking the cancellation decision and the Tribunal agreed. The Tribunal also took into account evidence provided by the applicant’s partner about the significant consequences the applicant’s departure would cause for the family.  

The third primary is the expectations of the Australian community. The Tribunal noted it was very difficult to assess the expectations of the community in an application such as this and acknowledged ‘without doubt’ that there would be strongly differing views as to whether the applicant should be able to continue to enjoy the privilege of remaining in Australia. The Tribunal was satisfied that fair-minded members of the Australian community, who are aware of all the facts of the matter and who understand the applicable law would not expect that the applicant be deported.

The Tribunal also acknowledged two ‘other’ considerations which were relevant to the decision. The first was the strength, nature and duration of the applicant’s ties to Australia. The Tribunal concluded that while the applicant’s departure from Australia would have serious consequences for his partner and their daughter, both of whom are Australian citizens, he had also been a drain on the country’s resources during his incarceration. The Tribunal found that apart from the effect on his family, the applicant’s ties to Australia did not weigh significantly in favour of the revocation of the cancellation of the visa. The second was the potential impediments the applicant would face if returned to Brazil. The Tribunal was satisfied that it is likely that he would suffer financial hardship and emotional distress however the Tribunal attributed this consideration no weight.

The Tribunal balanced the considerations above in coming to its conclusion. The Tribunal stated that the nature and seriousness of the conduct and the harm which would be caused to members of the community should the applicant re-offend, are factors which weigh heavily against the revocation of the decision to cancel his visa. The weight of these factors was significantly reduced by the fact the Tribunal was satisfied that the risk of re-offending was low. Given this conclusion, the Tribunal decided that the primary consideration of the welfare of the applicant’s young daughter outweighs all others.  The detrimental effect on the minor child would arise from her father being removed from Australia caused the Tribunal to be satisfied that there is a reason to revoke the cancellation of the applicant’s visa.

Read the full written decision on Austlii.