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VISA CANCELLATION ON CHARACTER GROUNDS: CAN IT BE CHALLENGED?

VISA CANCELLATION ON CHARACTER GROUNDS: CAN IT BE CHALLENGED?

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When a man’s temporary migration visa was cancelled because of his substantial criminal record including domestic violence, he took his case to the Federal Court to have the decision overturned. It raised some interesting questions about what the Australian Government takes into account when deciding to cancel a migration visa and whether anything can be done to challenge it.

Background

The man was from New Zealand. He came to Australia on a temporary migration visa in 2005 and was in a domestic partnership with a woman. She had one adult child and they also had a child together. Their child was born in Australia.

Later in 2005, the man was convicted of 2 charges of assault against the woman and 2 charges of contravening and Apprehended Violence Order (AVO). He received suspended sentences and was placed on a good behaviour bond.

In 2007, he was convicted of more similar charges and again received a suspended sentence and good behaviour bond. He was also ordered to do community service.

Then in 2014, he contravened an AVO while he was already on a bond. He was convicted of a range of offences including assault and destroying or damaging property, and was imprisoned.

The Australian Government then cancelled his migration visa on character grounds because of his “substantial” criminal record.  The man applied to the Court to review the decision.

Government’s decision 

In making its decision, the Government found that there were many considerations in in favour of allowing the man to stay in Australia, including:

  • It was in the best interests of the children.
  • The strength, nature and duration of the man’s ties to Australia and that he had lived in Australia for 20 years.
  • Deportation would cause his family emotional and financial hardship.
  • Deportation would cause the man emotional stress due to being separated from his family.
  • His steady employment record and his history of volunteering for community organisations.

The Government also took into account all the considerations in favour of deportation:

  • His extended family support network in New Zealand.
  • His employment skills were transferrable.
  • He would be entitled to financial and medical assistance from the New Zealand Government.
  • There were no cultural or language obstacles.
  • The Australian community had the right to be protected “from harm as a result of criminal activity by non-citizens.”
  • The man’s violent offences were very serious, especially because “domestic violence is a particular concern to the Australian community.”

The Government also looked at whether there was an unacceptable risk of harm, especially whether there was a risk of re-offending and the association of alcohol abuse with the man’s repeat offending.

The Government decided that the safety of the community outweighed all other considerations and so the migration visa was cancelled.

Findings

The Court found that the Government had the power to revoke the man’s visa in some circumstances but the man argued that the Government’s decision was “legally unreasonable” and that the submissions of his current partner should have been taken into account.

It said that the Government’s decision was not legally unreasonable and that if his current relationship failed and the man entered into new relationships, other women in the community would be at risk of harm.

There was no evidence that the man had sought counselling for his alcohol issues, which seemed to be a key trigger for his violent behaviour.

The Court found that the Government had taken into account everything that it was required and so the man’s application was unsuccessful.

What does it mean?

The Australian Government requires that visa holders and visa applicants are of good character. This means that they must be considered likely to uphold and obey Australian laws. A person will not pass the character test if, for example, they have a substantial criminal record (having being imprisoned for 12 months or more), or where there is a risk that the person will engage in criminal conduct.

Deportation from Australia on character grounds had serious repercussions for the man as it meant that he would never be eligible for another visa to re-enter or remain in Australia. This would have an enormous impact on his relationship with his kids.

When deciding whether to cancel a migration visa, the Government must go through an extensive balancing process of looking at all the reasons for and against cancellation. Visa holders can make submissions that the Government is required to consider. The Government must also abide by the detailed requirements set out in legislation before it can reach a decision.

It is a complicated process and so great care must be taken when making submissions and also when checking that the Government has followed the legislation to the letter.

There are plenty of other situations in which submissions can be successfully made and decisions to revoke visas can be overturned. However, this requires experience and expertise and if you need to challenge a government decision to revoke your visa, the best option available to you is to engage a migration lawyer. Websters Lawyers has a migration law team that can assist you with any migration issues. Contact us today for a free first interview.

Martin v Minister for Immigration and Border Protection [2017] FCA 1 (3 January 2017)

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