Australian Immigration Daily News

Imagine for a moment that you have received a phone call asking for assistance from a New Zealand citizen who is present in Australia on a Special Category visa. 

The person tells you that he has had his visa cancelled under the mandatory visa cancellation provisions of section 501(3A) of the Act because he has been convicted of sexually based charges involving a child, specifically, downloading child pornography from the Internet (in legalistic terms, accessing the material through the use of a “carriage service” as defined by the Telecommunications Act 1997.   

The person also tells you that he has made representations to the minister requesting that the visa cancellation decision made by one of the Minister’s delegate, but the Minister has refused to revoke the visa cancellation. 

Under what circumstances does the Tribunal have jurisdiction to hear an application for merits review of the refusal of an application for a 457 visa? 

That is a question that has been the topic of several recent cases that have been decided by the Federal courts. 

And there have several “variations on the theme” of this question! 

Suppose that when an applicant is filling out a visa application form, they make a mistake that might be totally innocent. 

For example,  suppose that when filling out the from, the applicant answers a question concerning her/his English language ability by stating that their IELTS test showed that her/his competency level was “proficient” when in fact the actual test report stated that it was really only at a “vocational” level.

And suppose that the applicant also provides the Department with the test report in support of the application. 

There has been yet another decision from the Federal Court which illustrates that having a personal history of residence in Australia from early childhood, powerful family ties to Australia, and virtually no connection to one’s country of origin is simply not enough to insulate a person from having his/her visa cancelled on character grounds. 

This decision, from the Federal Court, Renzullo v Assistant Minister for Immigration and Border Protection (2016) FCA 412 (22 April 2016) reinforces the lesson of the decisions handed down by the Full Court earlier this year in the Stretton and Eden  cases, namely,  that challenging a visa cancellation by the Minister on character grounds on the basis that the cancellation was “legally unreasonable” is likely to be very difficult, if not virtually impossible. 

The Renzullo case also brings home the point that just because a visa cancellation decision may appear “harsh or severe” (in the eyes of the visa holder) that fact alone is insufficient to give rise to a finding of legal unreasonableness.