Australia’s Immigration Department is cancelling Kiwi visas on “character” grounds – this can be successfully challenged!
Over the last 6-10 months, the Immigration Department has cancelled over 1200 visas (mostly held by Kiwis) on “character grounds”.
This is unprecedented and it is breaking families apart.
Recent changes to the Migration Act purport to allow the Minister to cancel a person’s visa if they have been sentenced to twelve months’ imprisonment, even if the sentence was wholly suspended (so no jail time was served), and even if it related purely to traffic matters. They can also do it even if the relevant offence was committed decades ago, and you have family which rely upon you in Australia.
That said you can fight it, and if you, or someone you know, is under threat of a cancellation on these grounds, then you need to seek advice ASAP.
For example, one 72 year old client came to us when the department cancelled his visas despite the fact that (1) he had lived in Australia for over 50 years; (2) he supports a family and his wife requires his ongoing care and assistance; (3) the offence dates back to 1992 and he has been a glowing contributor to the community since. He could have just accepted the deportation however he (correctly) chose to seek our help, and we in turn (successfully) sought the Court’s help. Basically, we successfully held off his deportation whilst we applied went to the Federal Court to have the cancellation reversed. We are proud to confirm that his PR Visa was reinstated, he is back with his family and he is caring for his loved ones once again. It is unfortunate that it took a Federal Court Application to restore his visa, however anyone in the same situation should take some comfort from the fact that these cancellations can be fixed, and they should seek advice ASAP.
Indeed, we are helping a growing number of permanent residents who face deportation immediately after they serve out their prison sentence, and our view is that any non-citizens with jail time, should immediately seek advice on what they can do, to protect against cancellation. As always the sooner you act, the better your chances are. We have enjoyed success in a few different directions under these new changes, and each case needs to be considered on its merits.
We’d now like to quickly mention the most recent case handed down, as it provides indicators on how to reverse these cancellation decisions. The majority of the cancellations challenged in the Federal Court of Australia have done so on the basis that the determination was ‘unreasonable’. The rules about whether the decision is reasonable was carefully considered in Renzullo v Assistant Minister for Immigration and Border Protection (2016) FCA 412 (22 April 2016), and whilst that visa applicant was unsuccessful, the Court set out some rules which will help future applications. It is noteworthy that the applicant’s criminal history was extensive – and he was described by the Court as having committed a ‘laundry list’ of offences, including robbery whilst armed in company, indecently dealing with a child between the ages of 13 and 16, aggravated burglary and manufacturing of a prohibited drug. Mr Renzullo appealed this decision, citing unreasonableness. He claimed that he had proven that his risk of re-offending was low, that most of his family resided in Australia and that he had been living in the country for 44 years. He also pointed out that his parents were of poor health and he would be unable to find a job in Italy, if he was deported.
The Court found that whilst the risk of re-offending was low, it does not matter that cancellation is unfair to the visa holder. To claim for disproportionality, the visa holder must demonstrate that the decision “exceeded what was necessary for the purpose it served”, and therefore it was decided that the visa holder’s criminal history and associated risk to the Australian community outweighed any mitigating factors, such as longstanding residence or family considerations.
It follows that if you can demonstrate the contrary, then you can have the decision set aside, and the person’s visa restored. For example, if you can show that a visa holder’s circumstances (such as longstanding residence or family considerations) outweigh that visa holder’s criminal history, then you have prospects. It also helps if you can demonstrate the visa holder is a remote chance of re-offending and is therefore a remote risk to the Australian community.
If your offence was omitted before these laws came into effect in 2013, then there are also constitutional issues involved because a cancellation in those circumstances, is effectively interfering with the role of the Court in deciding what sentence ought be imposed, by imposing a second punishment (visa cancellation).
If your visa has been cancelled due to character issues, contact our experienced migration agents at The Migration Place on +61 7 3229 4025.