Section 501 of the Migration Act 1958 (Cth) provides provisions on the refusal or cancellation of a visa on character grounds. A criminal record is one such character ground that could lead to a refusal or cancellation of an existing visa or application.
A visa may be cancelled or refused to be granted under section 501(3) of the Migration Act for two of the following reasons:
- The Minister reasonably suspects that the person does not pass the character test; and
- The Minister is satisfied that the refusal or cancellation is in the national interest.
- Character Test
A person will not satisfy the character test if they fall under any of the grounds listed in sections 501(6)(a) to (d) of the Migration Act. These grounds include the following:
- Substantial criminal record. For example: a custodial sentence for 12 months or more.
- Convictions with respect to immigration detention. This includes: offences committed when the person was in immigration detention, during an escape from or after the person has fled from the detention centre.
- Being associated with persons involved or suspected of being involved in criminal conduct.
- Suspected of being involved in criminal conduct of serious international concern.
- Persons who pose a danger to the Australian community by way of being involved in activities that are disruptive, violent in nature or threaten harm to the community.
- National interest
The Minister is awarded full discretion in determining what ‘national interest’ comprises for Australia. Some factors he/she may consider and try to balance are as follows:
- Protecting the Australian community from criminal acts
- The best interests of minor children
- The extent, length and strength of a person’s ties to Australia including immediate familial connections
- Australian business interests
- The interests of the victim and victims’ families
One case that demonstrates how a Minister may balance public interest with that of the person charged with committing criminal acts and thus deciding they no longer pass the character test is Tusitala v Assistant Minister for Immigration and Border Protection (2016) FCA 845.
In Tusitala, a delegate of the Minister cancelled the visa holder’s visa after he was given a 14 month sentence for breaking and entering and property offences. The cancellation was grounded on 1(a) above. After being released on parole, he was immediately transferred to an immigration detention centre. Here, he was held for 19 months (significantly longer than his original sentence) as he challenged the cancellation of his visa and the Assistant Minister’s decision not to rescind the visa cancellation.
In choosing not to revoke the visa cancellation, the Assistant Minister considered the potential harm Tusitala represented to the Australian community against the best interests of Tusitala’s family in Australia. The visa holder had two young daughters and his partner was unwilling to relocate with him if his visa was cancelled. The Assistant Minister acknowledged that cancelling Tusitala’s visa (and subsequently separating his family) would not be in the best interests of his two children. However, due to the length of the sentence and doubts as to rehabilitation, the Assistant Minister believed that the risk of harm to the Australian community posed by Tusitala was greater than the best interests of his children.
This case gives rise to a number of questions:
- Should the length of a sentence be considered or rather, the offence committed?
- Should property offences constitute substantial criminal conduct and hence act as grounds for cancelling a visa?
- Is it unfair for visa holders to be held in immigration detention on top of being imprisoned for their original sentence?
- Should such cases be solely determined by the Minister?
- Should courts be made aware that sentences of more than 12 months could negatively impact a person’s visa status and very likely lead to the person being forced to leave Australia (despite having strong ties to the country)?
The Migration Place consists of professional, experienced and a friendly team of Lawyers and Registered Migration agents who are available to help you resolve any visa issues or clarify any doubts you may have about your visa status. We will see through your visa application from start to finish and offer appropriate legal advice at the right time and at affordable rates.
In answering the above questions, we will work closely with our team of legal professionals at Irish Bentley Lawyers who specialise in a diverse range of disciplines including Criminal, Property & Conveyancing, Commercial Litigation and Family Law.
So if something is bothering you about your visa process, application or status, act now and contact us at The Migration Place on +61 7 3229 4025.