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CancellationCharacter TestDirection 65

Case Note: Zhou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2386 (27 November 2017)

By December 6, 2017October 22nd, 2018No Comments

Ms Zhou (the Applicant) was the holder of a permanent Subclass 100 visa (Spouse visa).

Following a police raid in 2013, she was charged with two offences of:

  1. importation of unregistered fire arms and tier 2 goods without approval
  2. and possession of unregistered fire arms and tier 2 goods without approval

She pleaded guilty to the two offences on the first day of her trial on 7 June 2016.

On 18 November 2016 she was sentenced to a term of imprisonment of 2 years for each offence.

On 29 March 2017, the held by Ms Zhou was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), a mandatory visa cancellation provision where a person has a substantial criminal record (which includes full time imprisonment of 12 months or more).

Pursuant to s501CA(4) the Applicant made representations to the Minister, to seek revocation of the original decision, but was unsuccessful.

The Applicant sought the review of the decision to the Administrative Appeals Tribunal (Tribunal) on 14 September 2017.

The law

Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory visa cancellation decision if the decision-maker is satisfied:

(i) that the person passes the character test (as defined by s 501); or

(ii) that there is another reason why the original decision should be revoked.

In considering “another reason why the original decision should be revoked”, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) states that the “primary considerations” are:

  1. the protection of the Australian community (cl 13.1);
  2. the best interests of any minor children (cl 13.2), and
  3. the expectations of the Australian community (cl 13.3).

Direction 65 also requires determination of whether “other considerations” are relevant.

Analysis

The Applicant was charged with joint importation and possession (with her husband) of a number of items (including firearms, magazines, knifes, capsicum sprays and knuckle dusters).

Given her sentence of more than 12 months of imprisonment, there was no scope for her to claim that she did not pass the character test set out in s501. Subsequently the Tribunal was required to take into account considerations in Direction 65 in determining whether the cancellation should be revoked.

Protection of Australian community

The Tribunal did not accept that the likelihood of the Applicant reoffending was as low as she claimed. Of particular concern was her lack of contrition and insight into her offending, her reluctance to accept responsibility for her actions, and her husband’s overbearing nature and her obedience to him. That is, the Tribunal found that the husband was likely to reoffend and that the Applicant was likely to follow suit, causing further danger to the Australian community.

The best interests of minor children

The Tribunal accepted that the Applicant had two grandchildren living in Australia who were aged one and four years. The Tribunal accepted that:

  1. for at least 18 months while the Applicant was on bail, she lived with her son’s family;
  2. the Applicant helped with the housework, cooking, and caring for the children when she lived with them;
  3. her son and his children tried to visit her each week while she was in prison, but usually they visited once a fortnight;
  4. before the criminal offending, her son and his wife did not live far from the Applicant, whom they saw a few times a week.

The Tribunal conceded that revocation is in the best interests of both of the Applicant’s grandchildren. However, it gave less weight to this consideration because the Applicant was in a non-parental relationship to the children.

Community expectations

The Tribunal held that the Australian community expects non-citizens to obey Australian laws while in Australia. Given the nature of the offences, which included firearms, the Tribunal found that the Australian community would expect that the Applicant should not hold a visa.

Other considerations (non-primary considerations)

The Tribunal found that:

  1. the Applicant did not have ties to the Australian community outside her immediate family; and
  2. there are no cultural or language barriers facing the Applicant if she returned to China, having lived there for 43 years of her life and worked as a teacher for 25 years.
  3. the Applicant would face some hardship on return to China, including missing her son and his family.

Conclusion

The Tribunal affirmed the decision of the Delegate, finding that the considerations favouring non-revocation of the mandatory visa cancellation decision, that is the protection of the Australian community and the expectations of the Australian community, outweighed the best interests of the Applicant’s grandchildren and the relevant other considerations in Direction 65.

In particular the following points are noted:

  1. the best interests of Australian children, if not direct children, will not be given significant weight;
  2. more than a low risk of reoffending is likely to lead to non-revocation of the cancellation;
  3. there is now a strict application of mandatory cancellation provisions based on character grounds for sentences of 12 months or more. In the 12 months leading to February 2017, 600 permanent residency visas were cancelled – a number not been seen in Australia since WW2, when a similar measure was used against German and Japanese born residents in Australia.[1]
  4. other instances of offences which have led to cancellation have included drinking and driving and driving while suspended.

The Minister has publicly announced that he is pursuing mandatory visa cancellations for those individuals with substantial criminal records.[2] Speak to an immigration lawyer / agent as soon as possible if you face such a situation. In this matter, clearly the Applicant did not show a sufficient degree of contrition or remorse to warrant a revocation.

Full decision here.

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[1] http://legal-matters.com.au/deportation-purge-australian-permanent-residency-holders-reality/

[2] http://www.themercury.com.au/news/scales-of-justice/aj-graham-to-hear-of-deportation-fate/news-story/c132e347a30a7f7ced1ee4ef92251a09

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