The Character Test and Visa Revocation
Under Section 501 of the Migration Act 1958, the Immigration Minister has the power and discretion to cancel a visa under certain circumstances if the visa holder does not pass the character test. Subsection(6) has the full list of reasons a person might not pass the character test. Examples include where the person:
- has a substantial criminal record
- represents a danger to the Australian community
- has a conviction for sexual offending involving a child
- is subject to a negative security assessment by the Australian Security Intelligence Organisation (ASIO).
What happens when a visa is cancelled?
Once a person’s visa is cancelled, they become an unlawful non-citizen. The person is also forbidden from applying for any further visa to enter Australia.
The person can, however, apply to the Department of Immigration and Border Protection to revoke the cancellation. They must apply within 28 days of the date of the cancellation letter. If this application is unsuccessful, the person may be eligible to apply to the Administrative Appeals Tribunal for review of the Department’s decision. If the person is in Australia, they are given up to nine days to appeal after notification. The Tribunal cannot review a decision made by the Minister personally.
LZGG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
In this recent tribunal decision, the Applicant was a person who had been deemed by a Ministerial delegate to have not passed the character test, and his visa was revoked on that basis.
In 2019 the Applicant had been convicted and sentenced in Queensland to 12 months jail for six counts of indecent treatment of a child under 16. The victim was his 12-year-old daughter.
Consequently, the applicant’s visa was automatically cancelled on the ground he did not pass the character test because he had a “substantial criminal record” as defined under s501(7)(c) of the Migration Act. It was also determined he did not pass the character test under s501(6)(e) because he had been convicted “of one or more sexually based offences involving a child”.
The Applicant sought revocation of the mandatory cancellation of his visa. This did not succeed, and the Applicant then applied to the Tribunal for review of the delegate’s decision.
The Tribunal had two issues to consider:
- whether the applicant passed the character test
- whether there was another reason the decision to cancel the Applicant’s visa should be revoked.
The Tribunal was satisfied the Applicant did not pass the character test defined under the Act.
In deciding the second issue, the Tribunal had to consider:
- Protection of the Australian community from criminal and other serious conduct;
- The best interests of minor children in Australia;
- The expectations of the Australian community.
The Tribunal was also required to take into account other factors such as the strength, nature and duration of the Applicant’s ties to Australia, and the impact of his offending on his victim.
The Tribunal stated that there could “be no doubt that these are very serious criminal offences directed toward a vulnerable child”. However, it also noted the Applicant:
- had no other criminal record
- was deemed a low risk of reoffending
- had made efforts at rehabilitation
- has strong family links in Australia, including with his two other children, who would be adversely affected should he be removed from Australia.
The Tribunal took into account all considerations and found that they weighed in favour of revocation of the mandatory cancellation. It set aside the decision under review and in substitution, revoked the visa cancellation.
Conclusion
This Tribunal decision shows that the common perception that a person will always have their visa revoked if they have incurred a significant criminal record is not always correct. Instead, the legislation requires the Tribunal to consider a wide variety of factors in assessing the level of risk to the community when deciding whether a visa cancellation should stand.
If you need advice about an immigration matter or any other legal matter, please contact Armstrong Legal.
This article was written by Tanguy Mwilambwe - National Practice Director - Brisbane
Tanguy is the National Practice Director in the areas of Administrative Law and Immigration Law. He is able to assist clients in court matters throughout most Australian jurisdictions, in relation to Administrative and Immigration decisions. Tanguy has appeared in the Administrative Appeals Tribunal, Federal Circuit Court of Australia, Federal Court of Australia, state courts (including Supreme, District and Magistrates Courts)...