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Visa Cancellation– what happened to “Innocent until proven guilty?”

A fundamental pillar of our legal system is that a person is ‘innocent until proven guilty’.

Our current migration laws allow a visa to be cancelled just because you are charged… even if you end up successfully defending the matter!

Basically, a visa can be cancelled if the visa holder “is, may be, or would, or might be a risk to the health, safety or good order of the Australian community.”

This cancellation power was discussed in a recent decision handed down by the Administrative Appeals Tribunal. This case involved the cancellation of a visa due to a number of charges including obtaining a benefit from child prostitution, using a child over 14 to make child abuse material, disseminating child abuse material and causing a child 14 years or older and less than 18 years old to do an act of child prostitution. However, on appeal, the Federal Circuit Court overturned this decision, citing a number of jurisdictional errors.

After consideration, it was found, among other things, that just because the police charged the visa holder, it did not lead to the automatic conclusion that they must have had reasonable basis to support the charges. The tribunal had made a finding of fact that the police must have had a reasonable basis to support the charges which was not based on any evidence. As a result, there was jurisdictional error and the visa cancellation was quashed.

If your visa has been cancelled on the basis of criminal charges, contact our experienced migration lawyers at The Migration Place for assistance on +61 7 3229 4027. These new character provisions of the Migration Act are draconian and deserve to be attacked. We have been successful on the majority of these matters, noting you really need experience in four areas of law (and we do all four!) to do justice to anyone caught by these new character provisions:

  1. Migration law
  2. Administrative law.
  3. Criminal law.
  4. Constitutional law.

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