Australian Immigration Daily News

It’s really amazing when you have a look at the reported cases coming out of the AAT and the Federal Courts.

Based on what is reported on Austlii, it surely appears that visa refusals and visa cancellations on character grounds are becoming a more and more important element of migration law practice.

Is there any way to predict the outcome?

Well, when you look at the visa cancellation cases, it surely seems that once a mandatory visa cancellation occurs, and the Minister makes a decision to refuse to revoke the cancellation, the prospects of getting the cancellation set aside in Federal Court are not great. Especially since there is of course no “merits review” in the Federal Courts, and the grounds of challenge to a visa cancellation are limited to proving that there was some kind of “jurisdictional error” in the Minister’s deliberative process.

It does seem though that when a case is before the AAT, for example on an application for merits review of a decision to refuse a visa application, that the prospects may be somewhat better.

Or at least that seems to be what is suggested by a recent decision that came out of the AAT last week, Nguyen and Minister for Immigration and Border Protection (Migration) (2017) AATA 1455 (13 September 2017).

On the face of the situation in the Nguyen case, one might have reason to think that this application was “dead on arrival”, and that the application for merits review of the refusal of the Partner visa that had been sought in this case was proverbially “doomed to failure”.

After all, what occurred here was that the applicant was convicted of the offence of “importing/exporting commercial quantities of border controlled (drug) precursors)”, namely receiving a package containing more than 2 ½ kilograms of “pseudoephedrine”, a chemical that is used in the manufacture of “ice”.  

The applicant was sentenced to a term of imprisonment of 3 years for this offence, with a custodial period of 20 months.

Given the notorious damage that “ice” can do to the Australian community, one might think that anyone convicted of importing something used to make ice would have practically zero chance of getting another Australian visa.

So, it is worthwhile to have a look at the factors which prompted the Tribunal to set aside the refusal in this case, while also noting that the Tribunal itself observed in its decision record that the case was not “clear cut”.

These are the matters referred to by the Tribunal which operated to “save” his visa application from refusal on character grounds:

• The offence was the only one for which the applicant had been convicted and sentenced to prison (although he had pleaded guilty to another offence, “handle/receive/retention of stolen goods – deal with property suspected proceeds of crime” he was not convicted of this offence;
• He was assessed in the report of a clinical psychologist as presenting a “low” risk of re-offending, as a result of a variety of factors including that he had been employed in the 12 month period before being taken into custody, feeling worried about spending time in prison, and having strong family relationships, as well as having conducted himself “well” while serving his prison sentence;
• The “best interests” of his 3 children weighed against refusal of the visa, particularly the parental role he played with his two step-children, which involved making meals for the children, taking them to and from school, helping them with their homework, etc.;
• His wife’s dependence on the applicant’s being present in Australia to care for the children, in order that she could operate her business, a kiosk at a shopping mall where she sold mobile phones and associated accessories.

A really interesting aspect of this was the Tribunal’s analysis of the issue of the “expectations of the Australian community”.  Here, the Tribunal took the view that while the mere fact that the applicant had been convicted of a drug-related offence, especially one involving the importation of a substance used in the manufacture of ice might lead the Australian community to expect that the visa application would be refused, other factors would cause the community to expect that he would be given a “second chance”.

The factors viewed by the Tribunal as likely to cause the community to consider that the applicant was deserving a second chance included his “faultless” record in prison, which included having a positive impact on other prisoners and starting a vegetable garden on the prison grounds; “serious” attempts to rehabilitate himself while in prison; and his having avoided pressures while in prison to become involved in drug supply and drug abuse and violent activity.

So, what do you think of all of this?

Should being involved in the importation of an “ice” precursor, even just one time, be automatically disqualifying for the grant of a further visa?

Can the Tribunal really accurately measure what the “expectations of the Australian community” are in a particular case - or is there too much room for subjective judgment?

This is surely far from the last case where questions of these kinds are likely to come up!

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