Tribunal: Deputy President B Rayment QC
The AAT set aside a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) not to revoke the mandatory cancellation of the applicant’s child visa. The AAT decided to revoke the cancellation in this case, which was complicated and tragic, with significant ongoing consequences for minor children if the applicant were returned.
The applicant’s visa was cancelled on character grounds because of her substantial criminal record. This was a mandatory cancellation by the Department after the applicant was sentenced to 20 months in prison for assault occasioning actual bodily harm.
The applicant had previously had a mandatory cancellation revoked and restored by the Department with a warning that further offending could result in a fresh cancellation.
When a person does not pass the character test, they can seek a merits review in the AAT where we have the discretion to revoke the cancellation if there is another reason for doing so.
The applicant, who is now 33, arrived in Australia from Fiji as a 14-year-old to live with her adoptive parents, who were also relatives. After moving here, the applicant, who is now a mother to five children (one of them deceased) experienced a life filled with trauma, including significant mistreatment at the hands of caregivers and partners. This brought on mental illness and a descent into drug use, which were contributing factors to her offending.
The question on review was whether the cancellation of her visa should not be disturbed, in which case she would be deported to Fiji, and thus live in a separate country to all her living children. She would also be separated from her brothers, who both work in Australia and have applied for citizenship. If the applicant stayed, she would have the opportunity to continue her rehabilitation and negotiate for greater access to her children both now and in the future.
The Tribunal noted the applicant had achieved a delicate stability in her life and, with ongoing treatment, was unlikely to reoffend. Contact with her children would also help her rehabilitation significantly and was in the best interests of the children too. Finally, humanitarian reasons meant because of her history she should not be exposed to another traumatic separation.
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