Australian Immigration Daily News

Are you ready for another quiz to test your knowledge of Australian migration law?

Ready or not, here it is:

Can a person have his visa cancelled without being convicted of a criminal offence, and indeed without even failing the “character test” provided in section 501(6) of the Migration Act?

If you have not been able to restrain yourself from combing through the posts of recent Tribunal cases on Austlii (!!!!), you will know the answer already:

As discussed in the Tribunal’s decision in the case of Guragain (Migration) (2017) AATA 1314 (17 August 2017) the answer to the quiz is: “Yes, visa cancellation can occur under section 116(1)(e) of the Act,  totally independent of character considerations or criminal record.

Section 116(1)(e) grants the Minister (Department officers through delegation) the authority to cancel a visa if: the presence of the visa holder in Australia is or may be, or would be or might be, a risk to the health, safety or good order of the Australian community”.

So what occasioned the visa cancellation in the Guragain case?

The visa was in Australia on a student visa for the purpose of pursuing university studies.  He was charged with conduct that was by any standard totally reprehensible: “three counts of filming a person engaged in a private act” and “two counts of filming a person’s private parts”.   The circumstances were that the visa holder had been working in a food store and was found using his camera to film colleagues (one might reasonably have cause to wonder why the visa holder’s colleagues were doing engaging in “private acts” whilst at work, but that perhaps is a question for them and their employer!).

In any event, the story that the applicant gave to the Tribunal was that he did not know how he committed these offences that they “sort of happened”, that they happened “all of a sudden”, and that he could “not wrap his mind about it”.

The Tribunal found these half-baked “explanations” to be “unpersuasive” and one could scarcely fault the Tribunal for coming to this conclusion.  This series of offences occurred over a period of about 2 months, and the Tribunal found that they required “at least a degree of preparation and planning and active engagement”.

The applicant surely didn’t do himself any favours with the evidence he gave to the Tribunal. He suggested to the Tribunal that “t is normal human behavior to do such activities until someone told him to stop”.  He also claimed that at the time that he committed the offences, he was suffering from depression and was “going through a tough time”. The difficulty with these claims was that the visa holder offered no evidence to support them.  Nor did the visa holder provide evidence that he was receiving any treatment to ensure that he would not engage in similar conduct in the future – it was his evidence that he did not have time to seek assistance from a psychologist while attending university.

The final slender reeds which the visa holder tried to grasp in this case were his claims that he had been granted bail and that he had not yet been convicted of the offences.  The problem with these arguments was that the visa holder had entered pleas of guilty to the charges. So the Tribunal quite reasonably concluded that the pleas of guilty did indeed suggest that the conduct which resulted in the visa cancellation had occurred. And the Tribunal quite correctly observed that a conviction is not a prerequisite to visa cancellation under section 116(1)(e).

So, while the wording of section 116(1)(e) is surely vague and imprecise, and appears to confer on the Department an extremely wide latitude to cancel visas on “subjective grounds” (by authorizing cancellation for conduct that might be a risk to “good order” (whatever that is!), this surely is a case where the visa holder destroyed his entitlement to remain in Australia by his own inexcusable conduct, and one where the cancellation powers were quite properly and justifiably exercised.

Thoughts?