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Tribunal: Deputy President J W Constance

The applicant applied to the AAT to review a mandatory cancellation of a visa made by the Department of Home Affairs (the Department). The applicant’s spouse visa was cancelled on the grounds that he did not pass the character test due to his criminal record.[1] The applicant was sentenced to imprisonment for four years and six months for manufacturing an indictable quantity of a prohibited drug and for exposing a child to this manufacturing process. When a person does not pass the character test, they can apply to the AAT to review the Department’s decision to revoke their visa.

In this review, the AAT was required to take into account Ministerial Direction no 79 (the Direction) as required by the Migration Act 1958. This meant the AAT needed to consider the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community when making a decision. The AAT was also required to consider other factors, such as Australia’s international non-refoulement obligations and the strength, nature and ties of the applicant to Australia.

The applicant’s failure to pass the character test was not in dispute and, should the applicant engage in further similar conduct, these actions would constitute a significant risk to the community. In addition to this, AAT needed to determine whether ‘there is another reason why the original decision should be revoked’.[2]

The AAT acknowledged the applicant did not dispute any of the convictions, and that he had taken steps to rehabilitate himself. He had been drug and alcohol free for five years. The applicant was also committed to re-establishing a relationship with his young daughter. Before his offending, the applicant had been a productive member of the Australian community and wished to return to employment. The sentencing judge noted the applicant demonstrated insight into his offending, that it was unlikely he would reoffend, and that the applicant used the drugs he manufactured himself; he did not supply to others.

The applicant’s concerns about being at risk of harm if he was returned to Iran were also considered, bringing Australia’s non-refoulement obligations into play.

Taking all issues into consideration, the AAT decided the positive factors in the applicant’s favor outweighed the negative factors. The decision to cancel the visa was set aside.

Read the full decision on AustLII.

 

 

[1] Section 501(3A) of the Migration Act 1958

[2] Section 501CA(4)(b)(ii) of the of the Migration Act 1958