May 5, 2021

Cancelling visas on character grounds

Direction No. 79 had recently been introduced and has been in effect since 28 February 2019. This Direction is in relation to visa cancellation and visa refusal under Section 501 and revocation of mandatory visa cancellation under Section 501CA of the Migration Act 1958 (the Act). The introduction to Direction No. 79 means that Direction No. 65 is no longer in effect.

Direction No. 65 focused solely on criminal convictions or other serious conduct committed by non-citizens against children, disabled members in the Australian community and elderly in Australia.

Direction No. 79 extends the above to serious crimes (including violence or sexual nature) committed against women or children or vulnerable members of the Australian community. On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Migration Act 1958 and must be applied by decision makers on and from 28 February 2019.

Case law

Operation of this Direction No 79 can be seen in the following case: MQGT and Minister for Home Affairs (Migration) [2019] AATA 874 (14 May 2019).

This case involved a South Sudanese national in Australia on a Class XB, Subclass 202 Global Humanitarian visa. This person, hereafter known as the Applicant, came to Australia in April 2007 as a nine year old and has not departed Australia since that time. Since September 2015, he was involved in increasingly serious criminal offences that resulted in several terms of imprisonment. At this point, he fails the ‘character test’ for a visa as he was sentenced to more than 12 months of imprisonment.

His visa was thus mandatorily cancelled. While serving the term of imprisonment, a delegate of the Minister for Home Affairs, pursuant to s 501(3A) of the Migration Act 1958 decided on 8 June 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test. The applicant applied to the Minister for a revocation of the cancellation which then made it to the AAT.

In the end, among many other considerations required by the Direction, the Tribunal found that the decision to cancel the visa should not be revoked because of:

  • (i) The very serious nature of his offending to date;
  • (ii) His demonstrated lack of insight into the nature of his offending involving, as it does, a lack of respect for lawful authority and the personal and property rights of others in the Australian community;
  • (iii) My finding that such lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
  • (iv) My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;

The AAT decision lists the criminal offences:

  • September 2015: a custodial term of six months for one charge of “enter dwelling with intent by break”;
  • September 2015: a custodial term of four months for one charge of “possession of tainted property” and one charge of “receiving tainted property”;
  • September 2015: a custodial term of 100 days for one count of “enter premises and commit indictable offence”;
  • August 2016: a custodial term of four months for:
  • “Possess utensils or pipes etc for use”;
  • “Possess utensils or pipes etc for use”;
  • Possession of a knife in a public place or school”;
  • August 2016: a custodial term of 12 months for:
  • “Possessing dangerous drugs”;
  • “Receiving tainted property”;
  • August 2016: a custodial term of four months for:
  • Breach of bail condition”;
  • August 2016: a custodial term of four months for:“Breach of bail condition”[x4]
  • August 2016: a custodial term of 12 months for:“Receiving tainted property”;[x2]
  • April 2018: a custodial term of four years for:“Enter dwelling with intent by break at night, in company, damage or threaten or attempt to damage property”;
    “Robbery with actual violence/armed/in company/wounded/used personal violence

West Aussie Migration is always reading about the latest decisions and keeping up to date with the law. This means we have the best information and can help you make the right decisions. Contact West Aussie Migration today if you have any questions, through our website’s contact form or our Facebook page.