Australian Immigration Daily News

A decision by the Full Court of the Federal Court of Australia that was handed down in late April of this year has clarified the factors that must be taken into account when the Minister personally exercises the powers to cancel a visa on character grounds under section 501(2) of the Migration Act.

The case – Moana v Minister for Immigration and Border Protection (2015) FCAFC 54 (22 April 2015) – involved the cancellation of a “Special Category” visa that was held by a citizen of New Zealand. At the time that his visa was cancelled, Mr Moana was 53 years old and had lived in Australia for 24 years. During the period of his residence, he had developed strong ties to Australia, with 5 adult children, 14 grandchildren, 2 step-children and a 3 year old son living here.

However, Mr Moana had also compiled a substantial criminal record during his time in Australia. This had included a sentence of imprisonment in 1998 for a series of offences including armed robbery, aggravated burglary, false imprisonment, blackmail and theft.  He had also been convicted of multiple counts of breach of “intervention” orders as well as several counts of breach of suspended sentence. Then, in January 2013 he was sentenced to prison again, for kidnapping.

This criminal history prompted the Minister to cancel Mr Moana’s visa. The Minister concluded that the protection of the Australian community outweighed the countervailing considerations relating to Mr Moana’s personal circumstances and his family ties to Australia.

Section 501(2) of the Act does not specify the matters that the Minister must take into account before exercising the discretion to cancel a person’s visa on character grounds. This provision of the legislation states only when the Minister’s discretion to cancel a visa is “enlivened” (able to be exercised), namely: 501(2)(a): the Minister reasonably suspects that the person does not pass the character test; and 501(2)(b): the person does not satisfy the Minister that the person passes the character test.  Of course, relevantly to this case, section 501(6) provides that a person does not pass the character test if the person has a “substantial criminal record” as defined under section 501(7). Section 501(7) in turn provides that a person has a “substantial criminal record” if she/he has been sentenced to a term of imprisonment of 12 months or more. 

However, section 501 is “silent” as to the matters that the Minister must “consider” before the power to cancel a visa on character grounds is actually exercised.  Thus, it was left to the Court in the Moana case to interpret the Migration Act and to determine what the “mandatory relevant considerations” are that must be “weighed up” before a visa is actually cancelled.

The conclusion that was reached by the Court on this issue was that it is mandatory for the Minister to consider whether the continued presence of the visa holder in Australia would present a risk of harm to the community. However, at the same time, the Court decided that it is not mandatory for the Minister to consider whether there is a likelihood that the visa holder may engage in future conduct which may cause harm.

Thus, in the Court’s view, it is not essential that the Minister take into account “static and dynamic factors” that may influence whether a person is likely to engage in future conduct that may cause harm, including factors such as the availability of family support; the person’s alcohol and drug abuse patterns; their employment prospects; and their likely future exposure to the “catalysts” which led them to commit the previous criminal offences.  Rather, the Court held that the Minister can properly cancel a visa on character grounds simply based on the seriousness of a prior offence or other past conduct, and is not bound to carry out an examination of whether there is a likelihood that the person may "re-offend" or otherwise engage in future conduct that will result in harm.

Nonetheless, the Court held that while consideration of the likelihood of harm is not a “mandatory relevant consideration” that is a prerequisite to the exercise of the discretionary power to cancel a visa, it is still an issue that “in most cases” will be “centrally relevant” to determining whether the Minister has lawfully exercised the visa cancellation.  Further, in the Court’s view, it may be “unreasonable” for the Minister not to consider the likelihood of future harm.  Thus, a decision by the Minister to cancel a visa without expressly considering this likelihood might well be vulnerable to challenge on the basis of “jurisdictional error”.

In the event, the Minister’s cancellation of Mr Moana’s visa was upheld by the Full Court, as the Court was satisfied that the Minister had evaluated whether his continued presence in Australia would present a risk of harm to others in the Australian community.

The lesson to be drawn from this important court decision is that a Ministerial determination to cancel a visa on character grounds will be vulnerable to challenge if the Minister fails to assess the mandatory factor of whether there is a risk of harm.  Moreover, while it will normally be important that the Minister also weigh whether there is a likelihood of future harm, it is not essential that this factor be considered. In some cases, the gravity of the visa holder’s past conduct may be sufficient to make the exercise of evaluating whether there is a likelihood of future harm unnecessary.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. Tel: (02) 8068 8837