Four recent cases were reported by the Administrative Appeals Tribunal (Tribunal) dealing with applications to revoke the cancellation of non-citizen of Australia on character grounds. All four were decided against the visa applicants. These are complex matters which require careful preparation taking into account the Directions issued by the Minister for Immigration and Border Protection which sets out the guidelines to be followed.
Mandatory cancellation occurs when a non-citizen is serving time in prison and has a substantial criminal record. His/her visa will (not may) be cancelled.
However the non-citizen has an opportunity of applying to the Department of Immigration and Border Protection (DIBP) to revoke the cancellation.
If the application to DIBP is unsuccessful then the non-citizen may be eligible to apply to the Tribunal for review.
The Tribunal will apply the same criteria as the DIBP in deciding whether or not there is “another reason” why someone who does not pass the character test should be allowed to remain in Australia.
A substantial number of non-citizens have had their Australian visas cancelled under these circumstances. When making submissions to DIBP or the Tribunal, it is necessary to make detailed submissions which deal with, amongst other things:
- Protection of the Australian Community from criminal or serious conduct;
- The best interests of minor children in Australia (if any); and
- Expectations of the Australian community.
The above are referred to as the primary (most important) considerations.
Other considerations in deciding whether to revoke a non-citizens visa on character grounds include:
- International non-refoulment obligations (if it can be argued that the non-citizen fears returning to his/her home country because of, for example, persecution);
- Strength nature and duration of ties to Australia (does the person have friends, family or other strong connections to Australia. How long has the person been in Australia);
- Extent of impediments if returned to their home country (for example if they come to Australia at a young age and have never lived in their home country where a different culture and or language applies, how would this affect their ability to reintegrate?).
Rothstein Lawyers has extensive experience in dealing with character ground cancellations.
