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Visa Cancellation In the News - What Do You Think?
OK everyone, can we have a show of hands please?
How many of you have a client, or a friend or acquaintance, who has been granted permanent residency and hasn’t bothered to get Australian citizenship?
Speaking for myself, I can say: I do! The husband of my wife’s closest friend migrated to Australia from England as a child and has lived and worked here for decades, and he hasn’t gotten his Australian citizenship.
Leaving loyalty to good old “Mother England” aside (on in my case “Uncle Sam” (yes I am a Yankee but don’t stop reading just because of that!) why bother?
Well, for people who have been watching the news (or better yet, reading my articles on the Migration Alliance blog!), there have been a lot of stories and cases over the last year that provide a compelling answer to the question: “Why bother?” The answer is that if you “don’t bother”, you may discover to your everlasting regret that your visa has been cancelled on character grounds and you have lost your right to remain in Australia.
Well, what if you have lived in Australia as a permanent resident since the age of 1 and you are “Aussie to the core” – can it happen to you? Yep!
And doesn’t “permanent resident” mean “permanent”? Nope!
An article that appeared in the Sydney Morning Herald over the weekend provides a dramatic illustration of how the visa cancellation powers under the Migration Act can operate, and how a person’s life can get swept up by (and I might observe) destroyed by, these powers.
Of course, no one should seek Australian citizenship on the basis that at some point in the future they might commit a criminal act, and having citizenship will protect them from getting their entitlement to remain in Australia cancelled. The reason to get citizenship is to have the benefit of being able to participate fully in Australian society!
The case that is reported in the Herald is that of a 41 year-old man, Ricardo Bolvaran. As the article describes, he was brought to Australia as a one-year old by his family when it fled from the infamous and barbarous dictatorship of Augusto Pinochet in Chile in the 1970s.
According to the article (and a companion story that appeared in the Herald back in October), Mr Bolvaran has a longstanding Australian partner (24 years) with whom he has three sons. Two of these boys are under 10 years old.
The stories in the Herald report that Mr Bolvaran recently pleaded guilty to offences involving drug possession, possession of a knife in public and receiving tainted property. He had previously (in 20006) been sentenced to a term of imprisonment of 18 months for other offences. Although the articles do not indicate how the recent offences were dealt with by the criminal justice system, it appears that the combination of the 2006 prison term and the more recent offences are what prompted the visa cancellation.
Whatever opinion one may have about Mr Bolvaran’s history of offending, it would be very difficult not to feel some degree of compassion for his situation. The articles in the Herald indicate that Mr Bolvaran has been deported back to Chile and that he has been having an extremely difficult time there. In the words of the Herald report, Mr Bolvaran finds himself a “stranger in a foreign land, lost and confused”. He is living in a room in a share house, has difficulty reading the papers so he can look for a job, and obviously he misses his Australian family desperately.
The article contains these quotes from Mr Bolvaran concerning the reasons why he didn’t get Australian citizenship:
"I just never thought I had to. I really didn't think I had to. I've never been questioned about my residency or who I am. I’ve always been Australian and I never took the time out to think that I had to check up on that sort of thing.I was pretty much born there – I turned one on the day I arrived in Australia – that's why it's baffled me and I'm so depressed about it all.”
It would surely be an understatement to describe Mr Bolvaran’s story as a “cautionary tale”.
It may not be as widely known as it should be by visa holders that they are at risk of visa cancellation if they commit criminal acts and fail the character test.
But there certainly have been plenty of articles in the media about this subject over the past year, so “word” about the Department’s/Minister’s visa cancellation powers should surely be getting around, and shouldn’t be a surprise to anyone.
Perhaps cases like this should provide a reminder to us, as RMAs, to be sure to tell our clients about the importance of complying with the law while they are here in Australia on visas, and to be sure they know that their visas can be cancelled on character grounds. And perhaps it should also be a reminder that RMAs should encourage their clients to consider applying for Australian citizenship when they become eligible to do so.
The case is also yet another reminder that even if a person has lived in Australia since infancy and is as “true blue” an Aussie as can be, if they’re not a citizen, their entitlement to remain here can be put at risk if they commit criminal acts and thus come to fail the character test.
What does everyone think? Are the visa cancellation powers appropriate? Are they applied too harshly?
The comments section is the perfect place for you to state your opinion!
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Comments
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Monday, 14 December 2015Interestingly, today is the first anniversary (14 December 2014) of this excessive, harsh, overkill legislation! The net is cast wide and the fallout and destruction of Australian families is utterly shameful. Australian society will pay heavily for the ongoing damage to the associated families who lose their mother, father, son or daughter to this draconian and merciless legislation. Surely we are a better country than this.
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Monday, 14 December 2015
Michael, I agree with you totally in terms of citizenship - though there is the issue of when the citizenship applicant had a bit of a brush with the law him/herself and Character is questioned... I had a client who committed an apparent traffic offence, for which the person was given a s10 good behaviour with no conviction recorded (though theses are always recorded on the AFP check). PR was granted in the knowledge of this (commonsense prevailed then) and 5 years later, the person applies for citizenship and is refused on the basis that there wasn't enough 'remorse' shown for having committed 'the crime', which was driving with an expired L permit though the person had a current overseas licence but according to the highway patrol person; the fact that the L permit was expired, that took precedent and that was that. No serial offender or drink driving, or drugs/people smuggler or child abuse... Anyway, the family's much too busy to appeal the citizenship refusal it so they've decided to have another go next year now knowing the arguments and availing themselves of a different approach. The question here is: how much remorse must one show, in what format and WHERE is that written in the Regs or the PAMs? I think that I agree with LB in the sense that the net is widely cast under the current environment and I dearly hope that common sense will eventually prevail so that Ministerial delegates making these decisions are not as overzealous as traffic cops... Two weeks ago I ran a citizenship information session in order to 'promote' the take up of citizenship and discuss character and other issues BUT the biggest complaint is the length of time that some applicants are having to wait for security checks (which I would have thought were thoroughly done at the time of PR). So I believe that as a service to our clients, keeping in touch and providing advice regarding keeping within the 'right side' of the law ALWAYS, particularly as they apply for Citizenship, are approved and eventually attend the official Ceremony, is the right thing to do because, Toto, I don't think we're in Kansan anymore and it will take a lot more than the clicking of heels to return us to some semblance of common sense.
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Tuesday, 15 December 2015
If you have committed crime, you've have to face the consequence, I could not see unfairness here.
Government has responsibility to protect general public at large.
Back to the Chilean, his visa was cancelled and the Minister made his decision not to intervene, it is his own decision, that is it.
He can ofcause lodge a partner visa application in the future, and may still be able to come back if the delegate satisfies the compelling and compassionate overweight his crime history.
He should learn the lesson and be a law a-bidding resident. -
Friday, 17 June 2016
I cringe to see comments on these articles that oversimplify a complex situation. The same thing is happening to our family, my brother who also arrived from Chile was 13 months old when my parents came to Australia, he is now 44 and being deported to Chile, a place he visited once when 10 years old. People comment on the responsibility of the people being deported and make claims suggesting that once a "criminal" you have no rights yet each of these people have served their time through decisions made my the court, deportation was not a possible consequence and would be DOUBLE punishing these people. Does Australia not have a responsibility to not let these people slip through the cracks? Our family has suffered enough due to my brothers very long history with drug addiction (and thus the crime that comes with it), he has done his time and is a product of this country. My parents came to this country with my 13 month old brother for a better life (for which they are grateful) yet my 70 year old mother will likely be leaving her 43 year old Australian life to return to the same place she left many year ago but with a damaged, drug addicted son. I don't understand how the Australian government believes that this is okay.
Immigration blog
I have a client who is working two jobs to raise enough money for a partner visa for his wife and two children. He works as a courier driver and a taxi driver and he tells me he often works 20 hours a day. I counselled him on working such long hours and what it could mean for his aim to be reunited with his family. He only has to nod off for a second while driving and be involved in a serious accident causing severe or fatal injuries. This could result in the imposition of a twelve month or more imprisonment sentence (whether suspended or not
which would result in his failure of the character test.