Australian Immigration Daily News

Followers of this Website will recall that we have reviewed a number of cases where New Zealand citizens who have lived in Australia since early childhood have had their visas cancelled on character grounds. 

In the majority of those cases, challenges that have been brought against the visa cancellations have not been successful. 

This is what makes a recent decision of the Administrative Appeals Tribunal, in the case of Engi and Minister for Immigration and Border Protection (Migration) (2017) AATA (12 September 2017) unusual and remarkable. 

For in this case, the visa holder was successful in persuading the Tribunal to set aside the mandatory cancellation of the visa! 

So, what was it about this case that made it different from other cases, and what was it that led the Tribunal member to conclude that the visa cancellation should be set aside? Perhaps there are lessons here for future cases! 

First, the background: 

The applicant had lived in Australia since he was 7 years old. His entire immediate family, including two sons that he had from a previous relationship, also live in Australia. Although the applicant’s sons live with their mother, he has nonetheless formed what the Tribunal described to be a “close bond” with them, and has been actively involved in their lives. 

The only family tie that the applicant had with New Zealand was his maternal grandmother, a person of advanced years and someone with whom the applicant was not well-acquainted. 

The Tribunal’s decision recounts that despite having “solid and supportive” parents, the applicant suffered from a troubled adolescence and early adulthood, which involved excessive use of alcohol and some drug taking. 

The criminal offence which led to the cancellation of the applicant’s visa involved an incident involving “theft of property and assault”. The applicant apparently removed some items from a van, and when he was pursued by a person who had become aware of the theft, struck that person in the face with a plastic bucket, causing injuries.

 For this offence, the applicant was sentenced to a term of imprisonment of 12 months. 

The Tribunal’s decision also makes reference to a number of other incidents, including an incident of domestic violence involving the applicant’s former partner, during which the applicant had punched a hole in the wall of his home and had threatened to harm his former partner with a pair of scissors; breaches of bail conditions; and being found in possession of an expensive watch that was believed to have been stolen. 

Apparently, none of these other matters had resulted in sentences of imprisonment; the Tribunal observed that they reflected a pattern of behaviour which the Tribunal described as “unsatisfactory”. 

So exactly what was it that saved the visa-holder’s situation? 

To begin with, the Tribunal took note that the sentencing magistrate had characterised the assault offence as one that was not “pre-meditated”, but rather, was one that was “reckless”. The Tribunal found that it was not an offence that could be regarded as being toward the upper end of seriousness. 

As for the domestic violence incident, the Tribunal observed that it had occurred in a context where both the applicant and his former partner had been drinking, and that the former partner had not suffered any actual physical injury. 

The Tribunal’s overall assessment of the visa holder’s conduct was that it had not caused “major harm”. 

Also weighing in the applicant’s favour was the Tribunal’s finding that the risk that the applicant would not re-offend was “not significant” if he was to be given the opportunity to resume life in the Australian community with the available support of his family; that it would be in the best interests of the applicant’s children for him to remain in Australia where he could continue to have direct contact with them; and the Tribunal’s view that the Australian community would have a greater tolerance for the applicant’s remaining in Australia as a result of his having lived here from an early age; and evidence from the applicant that he had stopped drinking, and that he had become aware that any further infringement would place his ability to remain in Australia at grave risk. 

So, to summarise, what did set this case apart from others where other New Zealand citizens have not been able to avoid visa cancellation? 

Apparently: the relatively low level of criminality involved (a relatively minor assault charge in which there had been findings by the court that the offence was not “pre-meditated”); the applicant’s very long-standing family ties to Australia, and the finding that cancellation of his visa would be contrary to the best interests of the applicant’s children. 

Will a combination of similar circumstances able a successful challenge to a visa cancellation in the future? 

We shall see!

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