Legal Framework
Under section 501(3A) of the Migration Act 1958, the Minister MUST cancel a person’s via if they are satisfied that the person fails the character test due to having a substantial criminal record or committing a sexually based offence involving a child and the person is serving a custodial sentence.
A substantial criminal record is defined as the person being sentenced to one of the following:
- Sentenced to death; or
- Sentenced to imprisonment for life; or
- Sentences to a term of imprisonment of 12 months or more; or
- Sentenced to 2 or more terms of imprisonment that total 12 months; or
- Person is acquitted of an offence on the grounds of unsoundness of mind or insanity and the person has been detained in a facility or institution; or
- Person has been found unfit by the court to plead and the court determined the person committed the offence and the person was subsequently detained in a facility or institution
If a person is subject to the mandatory cancellation of their visa, they can seek review of the decision by the Administrative Appeals Tribunal (AAT). The delegate of the Minister or the AAT also have the power to revoke the decision.
XMBQ and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 853
This case concerns the mandatory visa cancellation of the Applicant who was serving a sentence for a sexually based offence involving a child. The Applicant sought review of the decision and the visa cancellation was revoked by the AAT.
The Applicant received his permanent visa in 2003. He engaged in various criminal offences from 2010-2017 that included a sexually based offence of public masturbation in front of two females. On 15 December 2017, whilst the Applicant was serving a term of imprisonment, his visa was cancelled under section 501(3A) of the Migration Act 1958[i].
The Applicant appealed the decision to the Tribunal, who at first instance affirmed the mandatory visa cancellation. The Applicant then appealed to the Federal Court of Australia, and it was directed that the Tribunal reconsider the decision given the risk of harm the applicant would face if he were to return to his home country, Somalia, and Australia’s non-refoulement obligations.
When assessing a mandatory visa cancellation that has been challenged by the Applicant, Direction No. 90 drafted by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs applies.[ii] Directions are permitted under section 499 of the Migration Act 1958 and permit the Minister to issue directions that relate to the powers under the Act.[iii] Direction No. 90 requires the Tribunal to take the following considerations into account:[iv]
- Protection of Australian community
- Whether the conduct constituted family violence
- Best interests of minor children in Australia
- Expectations of Australian community
- International non-refoulement obligations
- Extent of impediments if removed
- Impact on victims
- Links to Australian community
[i] Migration Act 1958, s 501(3A)
[ii] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘Ministerial Direction No. 90’ Department of Home Affairs, (commenced 15 April 2021) < https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>
[iii] Migration Act 1958, s 499
[iv] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘Ministerial Direction No. 90’ Department of Home Affairs, (commenced 15 April 2021) < https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>
Once remitted, the Tribunal reassessed the case and considered the following factors:
- The risk of recidivism was moderate however could be managed or reduced to a low risk with appropriate intervention.
- The applicant had originally arrived in Australia as a refugee. He also had an acquired brain injury and experienced trauma issues.
- The Tribunal determined that the Australian community would afford a higher level of tolerance due to the applicant’s mental health issues
- The risk of harm to the Applicant if he were to return to Somalia. The Applicant would be at risk due to the continued operation of an Islamic terrorist group and his Christian religion and experience of mental illness.
- The Tribunal considered Australia’s non-refoulement obligations and determined that they would owe the Applicant protection. At international law, it is prohibited to return a person to a country where they would be at a genuine risk of harm. Therefore, Australia has an obligation to reduce the prospect of harm to any person by considering the risk of harm if they were to return to their home country.
The Tribunal determined that the risk of harm to the Applicant if he returned to Somalia in addition to Australia’s non-refoulement obligations outweighed the other considerations that encouraged the mandatory visa cancellation. The decision to cancel the Applicant’s visa was revoked and he was able to remain in Australia in safety. This recent case was decided after Minister for Home Affairs v Omar [2019] FCAFC 188 which set the standard for the Australian government’s responsibility to appropriately consider threats of harm to the applicant and Australia’s non-refoulement obligations in the context of mandatory visa cancellations.[i]
[i] Minister for Home Affairs v Omar [2019] FCAFC 188
Conclusion
The Minister has the power under the Migration Act 1958 to mandatorily cancel a person’s visa if they fail the character test. This has most impact on individuals who travel to Australia, commit a crime, and subsequently serve a term of imprisonment that amounts to 12 months or more. Whilst this case demonstrates an example of a somewhat successful outcome, the revocation of a mandatory visa cancellation, the law and context that surround this case are complex. It is important that visa applicants are aware of their obligations when travelling to Australia and the consequences should they fail to adhere to them.
[1] Migration Act 1958, s 501(3A)
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘Ministerial Direction No. 90’ Department of Home Affairs, (commenced 15 April 2021) < https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>
[1] Migration Act 1958, s 499
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘Ministerial Direction No. 90’ Department of Home Affairs, (commenced 15 April 2021) < https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>
[1] Minister for Home Affairs v Omar [2019] FCAFC 188
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