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Visa Cancellation and the Presumption of Innocence

How broad are the Minister's powers to cancel a visa under section 501(3) of the Migration Act?

And how difficult is it to challenge a decision of the Minister? Even where the visa holder has not actually been convicted of any criminal offences, and the cancellation is based on a finding that the visa holder has had a past association with a group or organisation that has been involved in criminal activity? Even where that association was apparently many years in the past?

The unsurprising answer to all of these questions, as illustrated by a decision of the Full Court of the Federal Court that was handed down in February, Taulahi v Minister for Immigration and Border Protection  (2018) FCAFC 22 (19 February 2018) , is that it is "very" or "extremely" hard to challenge a visa cancellation on character grounds, even in the described above.

Like several other visa cancellation cases that have been discussed recently on this blog, the basis on which the visa holder's visa was cancelled in this case was his (apparently) previous association with an "outlaw motorcycle gang".  In this case, the Minister formed a "reasonable suspicion" that the visa holder did not pass the character test due to his previous membership in the "Lone Wolf Outlaw Motorcycle Gang" and that this "gang" had been involved in criminal conduct.

The visa holder had made submissions to the Minister that he was no longer a member of this motorcycle gang, was not associated with any member of the gang, and had no interest in any other gang.  

But these submissions were of no assistance to the visa holder, as the Minister had taken these matters into account.  

So there was no viable argument available to the visa holder that the Minister had committed "jurisdictional error" by failing to take those submissions into account.

What apparently proved fatal to the visa holder in this case was that three Apprehended Violence Orders had been taken out against him by his former girlfriend, dating back to October 2011 and February 2012 (there is no explanation or discussion in the Full Court's decision concerning exactly when the Minister's visa cancellation decision was made, but it appears that the decision was made some years after the AVOs were issued.

The AVOs had evidently been predicated on incidents involving behaviour that was by any standard, completely reprehensible:

* An incident of "intimidation" in which the visa holder's former girlfriend refused to open the front door and disclose who she was speaking to, which was alleged to have escalated to involve conduct by the visa holder which involved getting a butter knife, threatening to kill the girlfriend, and then throwing the butter knife at her;

* A second incident in which the visa holder allegedly accused the former girlfriend of "cheating" and then assaulted her 20 - 30 times to the face; and

* A third incident where the visa holder allegedly destroyed a television, lamp, mirror and en-suite.

The visa holder's lawyers challenged the Minister's visa cancellation decision on the basis that the incidents that formed the basis of the AVOs had been merely "untested allegations" that had not been "proven to have occurred", that there had been no "probative evidence" before the Minister that the visa holder had actually engaged in the conduct, and, that in any event, the visa holder had not been charged or convicted with any offences arising out of the incidents.

The visa holder's lawyers went on to make submissions to the Full Court that a visa cancellation in these circumstances would be contrary to the "presumption of evidence".

The Full Court rejected these submissions and dismissed the application for judicial review of the visa cancellation decision.

Justice Robertson, joined by Justices North and Besanko, ruled that for the administrative purposes of the visa cancellation decision, it was "open" to the Minister to conclude that the events that had formed the basis for the grant of the AVOs had occurred, even though the visa holder had not been charged or convicted.

The Full Court also took the view that material that had been before the Minister describing the grounds on which the AVOs had been issued was a sufficient basis on which the Minister could reach conclusions that the visa holder had a propensity to engage in "intimidating behaviour".

So there you have it. In this case it was found that there was no need for there to be any criminal charges or convictions, and that the mere description of conduct that had allegedly been engaged in by the visa holder was enough to enable the Minister to lawfully cancel a visa.

Fair or unfair? Right or wrong? Share your thoughts in the comments section!

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  • Guest
    kevin Tuesday, 17 April 2018

    pragmatic decision the immigration minister does need this type of discretionary reasonable conclusion legislation which can be used such as in this in case such as this is not a black or white past behaviour & attitudes are why his appeal was dismissed sometimes you have to err on the side of caution to protection of the Australian public

  • Guest
    danny Friday, 20 April 2018

    Legal rights are being eroded daily by the application of migration law and the decisions of the AAT and courts that review those decisions, or are appealed to, when the appointments to the AAT and to the courts are made by the very government that is actively eroding those rights.

    Whether or not the ultimate decision in this case is reasonable, this is a terrible precedent.

  • Guest
    Dante M Friday, 20 April 2018

    This is disgrace decision!! Mere allegation should not becenoigh to cancel visa on character grounds!

  • Guest
    Dante M Friday, 20 April 2018

    This is decision is a disgrace..mere allegation with no criminal charge is enough for the Minister to cancel visa on character grounds. This will allow alleged victim to concoct acts misconduct and manage to cancel the visa.

  • Guest
    Paul Sadler Saturday, 21 April 2018

    Migration law is administrative law, not criminal. Presumption only applies in criminal law. If you add presumption to migration law cases then ALL administrative law will need to have the same consideration, NCAT, industrial relations, Centrelink disputes etc etc. This will be a veritable lawyer's picnic and practically bankrupt the country.

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