7 year jail sentence alone is insufficient to fail character test
Minister’s visa cancellation decision is deemed too severe and is set aside by the AAT.
In October 2013, Immigration Minister Scott Morrison ruled that Sean Gabriel did not pass the character test and decided to cancel his visa, due to his part in the 2008 violent attack and robbery on Dr Mukesh Haikerwal and four others. Gabriel was sentenced to a 7 year prison term for the attack which the courts stated were, "very serious, involving senseless extreme violence against totally innocent and defenceless victims".
The Administrative Appeals Tribunal of Australia (AAT) has however set aside the Minister’s decision. The Tribunal held that Gabriel has a low to moderate chance of reoffending; he would have trouble resettling in his birthplace New Zealand which he had left at the age 10; and the Tribunal also referred to the Victorian Court of Appeal’s following considerations:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
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