Burton (Migration) [2018] AATA 4220

Tribunal: Deputy President Jan Redfern (presiding member) and Senior Member Michael Ison

This matter concerned the cancellation of a special category Subclass 444 visa where the visa holder was a New Zealand citizen but a long-standing resident of Australia and had been charged with, but not yet convicted of, serious offences. The decision discussed the two different sections of the Migration Act 1958 (the Act) which provide the Minister of Home Affairs (or their delegate) with the power to cancel a visa: section 116 and section 501. The AAT discussed the interaction of these two sections in depth in the decision Kapene Te Amo (Migration) [2018] AATA 2214 and a summary of that decision is available.

The issues for consideration by the Tribunal were whether the ground for cancellation existed to authorise the power to cancel the applicant’s visa and, if so, how the discretion to cancel should be exercised in the circumstances of the case. The applicant was a New Zealand citizen who had resided in Australia for many years, had significant links with Australia and had been charged with serious offences which were listed for hearing in May 2019. The matter was considered by Deputy President Redfern and Senior Member Michael Ison, who did not agree on the ultimate outcome of the case. As the presiding member, Deputy President Redfern’s decision was the operative decision.

The applicant was a New Zealand citizen who migrated to Australia in 2001, when he was seven years old. He spent his formative years in Australia, resided in Australia with his family but made frequent trips back to New Zealand with his mother over the period. The applicant’s stepfather and two younger siblings are Australian citizens. The applicant was issued a special category Subclass 444 visa upon every arrival in Australia. This is a temporary visa available to New Zealand Citizens allowing them to remain in Australia for an indefinite period.

The applicant was charged with a number of serious criminal offences and on 8 February 2018 a delegate of the Minister for Home Affairs cancelled the applicant’s visa on the basis of Section 116(e) of the Act. This section provides that a temporary visa may be cancelled if the decision-maker is satisfied that the presence of the visa holder is or may pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community. If satisfied that the ground for cancellation is established the decision maker must then consider whether to cancel the visa holder’s visa in the circumstances of the particular case. The Department developed guidelines known as the Procedures Advice Manual 3 (PAM3) – General visa cancellation powers, which list a range of considerations the decision maker should take into account when considering the exercise of their discretion.

A permanent visa cannot be cancelled under section 116. The applicant submitted his visa was like a permanent visa and that the threshold for consideration of whether there was power to cancel his visa under s 116 should be higher than other temporary visas.

Deputy President Redfern did not accept this submission and was satisfied, given the seriousness of the charges and the fact the applicant had been committed for trial, that the applicant’s presence may pose a risk to the safety of the Australian community.[1] The Deputy President was therefore satisfied that the power to cancel was enlivened but accepted that the impact of cancellation may be more significant where a Special Category visa is cancelled, which was an issue that should be considered in the exercise of the discretion.

The Deputy President then considered whether to exercise the discretion to cancel the visa, taking into account the relevant PAM3 guidelines.

Deputy President Redfern accepted that the seriousness of the charges weighed in favour of cancellation of the visa but noted that the weight of this consideration was mitigated by the strict bail conditions applying to the applicant pending his criminal trial and the fact that if he was convicted it was likely his visa would be mandatorily cancelled under section 501. Deputy President Redfern also accepted that the consequences of the visa remaining cancelled weighed against cancellation in this case because of the prospect the applicant would be removed from Australia after his criminal trial and would be unable to return, regardless of the outcome of the trial. This Deputy President found that this would be a significant hardship to the applicant and to his family, which included three Australian citizens, in the circumstances of this case.

The Deputy President concluded that on balance, the preferable decision was to set aside the decision to cancel and to substitute a decision not to cancel the visa, which would allow any cancellation decision to be considered after the outcome of the criminal trial is known.

Senior Member Ison agreed that the ground for cancellation existed but applied the PAM3 guidelines differently and gave the circumstances in which the grounds for cancellation arose the greatest weight. On balancing the considerations, Senior Member Ison concluded the visa should remain cancelled.

View the full written decision on AustLII.