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How strict is the mandatory visa cancellation regime under section 501(3A) of the Migration Act?
How difficult is it to challenge the Minister's decision not to revoke the mandatory cancellation of a visa?
How far are you likely to get by arguing that compassionate circumstances weigh against the cancellation of the visa?
These points are all illustrated by a case that was decided last week by the Federal Court, Kim v Minister for Immigration and Border Protection (2017) FCA 372 (13 April 2017).
The background of this case was that the visa holder was in Australia under the authority of a carer visa, which he had been granted to enable him to remain in Australia to look after his elderly mother.
Unfortunately for his visa status, he was convicted in the Local Court of NSW of 2 counts of the offence of “Stalk/Intimidate intend fear physical etc. harm domestic”. As a consequence, he was sentenced to 2 terms of imprisonment of 12 months, to be served concurrently, and with a minimum non-parole period of 3 months for each conviction.
Shortly after he was convicted of these offences, a delegate of the Minister cancelled his visa under the mandatory cancellation provisions of section 501(3A).
He then unsuccessfully sought to have the cancellation of his visa revoked.
Among the grounds relied on in the Federal Court for the application to overturn the Minister's refusal to revoke the cancellation was that the visa holder did not actually fail the character test because he had only spent three months in jail, despite having been sentenced to two terms of imprisonment of 12 months.
This argument, predictably, went down in flames.
The Court found that the Minister had correctly interpreted section 501(6)(a) of the Migration Act, which provides that a person does not pass the character test if he/she has a “substantial criminal record” as defined under section 501(7)(c). That section provides, in turn, that the term “substantial criminal record” includes a circumstance in which the person has been sentenced to a term of imprisonment of 12 months in jail.
Thus, as the Court observed, it is the duration of the sentence and not the amount of time that the person has actually spent in jail, that is relevant for the purposes of determining whether a person does or does not have a substantial criminal record, and, in turn, for determining whether the person does or does not pass the character test.
Effectively, for the purposes of the character test under section 501(6), it does not matter whether the visa holder has spent a day or a decade in prison, all that matters is the term of imprisonment imposed by sentence. And if the sentence is for 12 months or more imprisonment, that is the end of the story.
It also turned out that the matters that were relied on by the visa holder as “compassionate” or “mitigating” circumstances were not enough to save his situation.
It was put to the Minister that the visa holder was the sole carer for his mother, a 79 year old citizen of Australia who had no other family in Australia. It was also put to the Minister that the visa holder's offences were “situational” in that he had suffered from alcoholism but had undertaken alcohol rehabilitation and that , as he was now separated from the spouse who had apparently been the victim of the offences, he was unlikely to re-offend.
These matters did not persuade the Minister to revoke the visa cancellation. Although the Minister did have regard to the visa holder's “positive contribution to the Australian community” through his service as his mother's carer, the Minister found that this was outweighed by the very serious nature of the crimes that he had committed (which were not described in detail in the judgment of the Federal Court) and the risk of harm to the Australian community that might occur if the visa holder were to re-offend.
The applicant's attempt to argue “compassionate circumstances” directly to the Federal Court also failed. The applicant made submissions to the Court concerning the state of his mother's health, her lack of mobility and her reliance on the applicant to live her life day to day.
However, the Court characterised these submissions as an attempt to get the Court to engage in “merits review” (in other words, to substitute its judgment as to whether the cancellation of his visa should have been revoked), and of course hits was something that was beyond the scope of the Court's powers.
The unhappy moral of this story is that when it comes to visa cancellation on character grounds, mitigating circumstances, even mitigating circumstances as strong as the dependence of an elderly relative on the visa holder, may not be enough to stave off the loss of visa entitlement in the face of a serious criminal offence.
It surely appears that the Minister is taking a very “hard line” with these matters.
Is he right to do so? Is it fair and just? Should the Minister have been less strict here, and should he have given more weight to the dependency of the visa holder's mother? After all, the effect of the visa cancellation in this case was to deprive an elderly Australian citizen of the assistance, support and companionship of her sole carer.