Character test under section 501 can be used discretionary to refuse a visa application or to cancel a visa.

Discretionary visa refusal or cancellation

Character test under section 501 provides that a visa application may be refused if the applicant does not satisfy the decision maker that they pass the character test. Similarly, if the decision maker reasonably suspects that a visa holder does not pass the character test, and the visa holder does not satisfy the decision maker that they pass the character test.

The character test under section 501(6) requires the decision maker to determine whether or not the person passes the character test according to the prescribed circumstances. If a person does not pass 1 ground, then they do not pass the character test.

Unresolved or pending criminal matters

If a person already failed the character test then any other outstanding criminal matter would not generally prevent visa refusal or cancellation under section 501.

However, if a person who does not already fail the character test and is subject of unresolved or pending criminal charges in Australia, would not generally be considered under section 501 until the charges have been finalised.

If a person is in Australia, and they are facing criminal charges in another country which cannot be resolved without their presence in that country, the conduct that is the subject of the criminal charges may be considered under section 501(6)(c)(i) and/or (ii).

If the applicant does not pass the character test, their visa applicant will be refused under section 501(1).

If the visa holder does not pass the section 501 character test, their visa will be cancelled under section 501(2).

Mandatory visa cancellation

Section 501(3A) requires the decision maker to cancel a person’s visa because they have a substantial criminal record (section 501(6)(a)) because the person has been sentenced to death, imprisonment for life, or sentenced to 12 months or more imprisonment (section 501(7)(a), (b) or (c)); or involved in sexually based offences involving a child (section 501(6)(e)). The sentence must be a full-time custodial sentence.

Whether a person is liable for mandatory visa cancellation, “serving a sentence of imprisonment, on a full-time basis” does not include periodic detention or home or residential detention.

A person who has been servicing a full-time sentence and is allowed to participate in a work release scheme, or is allowed home visits is liable for mandatory cancellation.

The mandatory cancellation is only activated when a decision maker makes a finding that they are satisfied that section 501(3A)(a) and (b) are met. Once the decision maker is satisfied, they must cancel the person’s visa.

The intention of mandatory cancellation of those who are in prison is to make sure they do not pose a risk to the safety of the Australian community and they are to remain in either in prison or in immigration detention until that risk has been assessed.

Substantial criminal record

Section 501(6)(1) provides that a person does not pass the character test if they have a substantial criminal record as defined in section 501(7).

A person has a substantial criminal record if:

• sentenced to death; or
• sentenced to imprisonment for life; or
• sentenced to a term of imprisonment of 12 months or more; or
• sentenced to 2 or more terms of imprisonment totally 12 months (eg, sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently, the total of those terms is 6 months); or
• acquitted of an offence on the grounds of unsound mind or insanity; and has been detained in a facility or institution; or
• found by a court to not be fit to plead and has been detained in a facility or institution.

Immigration detention offences

If a person who has been convicted of an offence that was committed while in immigration detention; or while escaping from immigration detention or after escaping from immigration detention but before been taken into immigration detention again, they will not pass the character test (section 501(6)(aa) & (ab)).

A person does not pass the character test if convicted of an offence against section 197A.

Membership/Association

Under section 501(6)(b), if the Minister reasonably suspects you have been or is a member of a group or organisation, or you have or have had an association with a group, organisation or person which or who has been, or is, involved in criminal conduct, then you do not pass the character test.

Minister’s suspicion

The Minister’s suspicion does not have to be a certainty or a belief. However, the suspicion must be more than a speculation or idle wondering. The Minister’s suspicion must be reasonable, it should be:

(a). a suspicion that a reasonable person could hold in the particular circumstances; and

(b). based on an objective consideration of relevant material.

Belonging to a criminal group or organisation

If you belongs to a group or organisation, the Minister is required to have evidence to establish reasonable suspicion of your membership which depends on the circumstances of the case. The Minister is not required to assess whether you are sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is enough that the Minister has reasonable suspicion that:

(a). you have been, or is a member of a group or organisation; and

(b). the group or organisation has been, or is, involved in criminal conduct.

Associating or associated to a criminal group or organisation

Unlike belonging to a group or organisation, under the association limb of the character test, the Minister is only required to have a reasonable suspicion that you were sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation to fail the character test. However, mere knowledge of the criminality of the associate is not, in itself, enough to establish association. The association must have some negative bearing upon your character.

You should note some information concerning association cannot be disclosed if the disclosure might put the life or safety of informants or other people at risk.

Involvement in certain criminal activities

Under section 501(6)(ba), you do not pass the character test if the Minister reasonably suspects that you have been, or is involved in, conduct constituting 1 or more of the following:

(a).      people smuggling (described in sections 233A to 234A);

(b).     trafficking in persons;

(c).      genocide, a crime against humanity, a war crime, a crime involving torture or slavery  or a crime of serious international concern.

You should note that you can fail this limb of the character test even if you have not been convicted of an offence constituted by the conduct.

Not of good character due to past and present criminal or general conduct

Under section 501(6)(c)(i) and (ii), you do not pass the character test if you are not of good conduct because of your past and present criminal and/or because of your past and present general conduct.

Conduct can be both general and criminal at the same time or it may either general or criminal conduct (Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]).

The Minister can consider that you are not a person of good character when all the relevant circumstances of the particular case are taken into account to obtain a complete picture of your character.

What is of good character?

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not just a matter of repute, fame or standing in the community. The words “of good character” refer to the continuing performance according to moral principle. For example, a person of ill repute because of their past criminal conduct may, on objective examination at a later stage in life, be shown to be a person reformed and now of good character (Godley v MIMIA (2004) 83 ALD 411 at [34]).

You can fail this limb of the character test even if you do not have a recent criminal conviction, or have been involved in recent general conduct which could indicate that you are not of “good character”. However, your conduct in question must be sufficient to indicate a lack of enduring moral quality that outweights any consideration of more recent good behaviour. So, the nature of your criminal conduct must be examined and assessed as to its degree of moral culpability or turpitude. In addition, the Minister must examine your past and present criminal conduct to establish that at the time of decision, you are not of good character. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that you are not of good character.

Furthermore, before past and present general conduct is taken to reveal indicia that you are not of good character, your continuing conduct must be shown a lack of enduring moral quality (Godley v MIMIA (2004) 83 ALD 411).

What is past and present criminal conduct

Whether you are not of good character because of your past or present criminal conduct, the Minister will take the following into consideration:

(a).      the nature and severity of your criminal conduct;

(b).     the frequency of your offending and whether there is any trend of increasing seriousness;

(c).      the cumulative effect of repeated offending;

(d).     any circumstances surrounding the criminal conduct which may explain the conduct, for example, the sentencing judge’s comments, parole reports and other authoritative documents; and

(e).      your conduct since your most recent offence, including:

          (i).      the length of time since last criminal offending;

          (ii).      any evidence of recidivism or continuing association with criminals;

          (iii).     any pattern of similar criminal conduct;

          (iv).     any pattern of continued or blatant disregard or contempt for the law;

          (v).      any conduct which may indicate character reform.

What is past and present general conduct

Past and present general conduct refers to situation where convictions may not have been recorded or when your conduct may not have constituted a criminal offence. However, the relevant circumstances of the particular case are to be taken into consideration, including evidence of rehabilitation and any relevant periods of good conduct.

The Minister may consider the following factors to determine whether you are not of good character:

(a).      whether you have been involved in activities indicating contempt or disregard for the law or for human rights. This includes (not unlimited to):

          (i). involving in terrorist activity, trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or

          (ii). having a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or in another country; or

          (iii). involved in war crimes or crimes against humanity.

(b).      whether you have been removed or deported from Australia or another country

(c).      whether you have been:

          (i). dishonourably discharged; or

          (ii). discharged prematurely

          from the armed forces as a result of disciplinary action or serious misconduct

In addition, if you are in Australia and charges have been brought against you in another country, and those charges will only be resolved if you return to that country, that conduct may be considered against your overall character.

Risk in regards to future conduct

Under section 501(6)(d), you do not pass the character test if there is a risk that you would engage in below conduct. However, there must be evidence suggesting that there is more than a minimal or remote chance that you, if you would engage in the below conduct. Section 501(6)(d) cannot be applied to the past conduct because there must be a risk that you would engage in the below conduct in the future.

Future conduct (section 501(6)(d))

1. Engage in criminal conduct in Australia – a criminal conviction could be recorded (section 501(6)(d)(i))
2. Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii)). Conduct and behaviour that may fall under this category include (but not limited to):

(a). conduct that could be construed as harassment or intimidation which does not necessary breach an AVO or DVO

(b). conduct that could potentially places children in danger, for example, unwelcome and/o inappropriate approaches through electronic media and other means

(c). conduct that would reasonably cause a person to be severely apprehensive, fearful, alarmed or distressed regarding your behaviour or alleged behaviour towards an individual, or in relation to their property.

• Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v)). Factors to be considered include (but not limited to) evidence that you:

(a). would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression

(b). would vilify a part of the community

(c). have a record of encouraging disregard for law and order (for eg, when addressing public rallies)

(d). have engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society (for eg, advocating that particular ethnic groups should adopt certain political, social or religious values outside those generally acceptable, and if adopted or practised, might lead to discord within those groups or between those groups and other segment of the society

(e). participates in, or is active in promoting politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia

(f). likely to provoke civil unrest because of the conjunction of your intended activities and proposed timing of your presence in Australia with those of another person, group or organisation holding opposing views.

You should note that section 501(6)(d)(iii) to (v) is balanced with freedom of expression. The Minister cannot refuse or cancel your visa simply because you hold and are likely to express unpopular opinions unless those opinions may attract strong expressions of community disagreement and condemnation.

Sexually based offences involving a child

Under section 501(6)(e), you will not pass the character test if a court in any country has convicted you of 1 or more sexually bas offences involving a child or found you guilty of such an offence, or found a charge proven, even if you were discharged without conviction or regardless of the level of penalty or orders made in relation to the offence.

What are sexually based offences involving a child?

They include (but not limited to):

(a). child sexual abuse

(b). indecent dealings with a child

(c). possessing or distributing child pornography

(d). internet grooming

(e). other non-contact carriage service offences

Crimes under International Humanitarian Law

You will not pass the character test if you have in any country been charged with or indicted for 1 or more of the following offence (section 501(6)(f)):

• Crime of genocide
• Crime against humanity
• War crime
• Crime involving torture or slavery
• Crime that is otherwise of serious international concern

National security risk

If ASIO has assessed you to be directly or indirectly a risk to security (section 4 of the ASIO Act 1979, then you will not pass the character test (section 501(6)(g)).

Certain Interpol notices

Under section 501(6)(h), you will not pass the character test if an Interpol notice in relation to you is in force as this infer that you would present a risk to the Australian community or a segment of that community.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (consultation fee applies) regarding the character test under section 501 or click here to learn more about Direction No 90.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Direction No 99 is the Ministerial Direction provides consideration for the decision maker to consider when refusing or cancelling a visa under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

Direction No 99 replaces Direction No 90. Like other Ministerial Directions, Direction No 99 is given by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under section 499 of the Migration Act 1958.

Direction No 90 has been replaced by Direction No 99 (effective on 3 March 2023). Direction No 99 allows the strength, nature and duration of ties to Australia to be considered as a primary consideration. Hence, will be given more weight by the decision-makers. What this mean is, the level of tolerance will increase with the length of you have spent in Australia, especially if you have been living here as a child. Whereas, under Direction No 90 these factors were considered as “other considerations” and not given much weight.

The Migration Act 1958 regulate, in Australia interest, the presence of non-citizens in the country. A non-citizen who does not pass the character test is liable to have his or her visa application refused or their visa cancelled.

Section 501(1) prescribes that a non-citizen may be refused a visa if they do not pass the character test. Similarly, under section 501(2), a non-citizen may have their visa cancelled if they do not pass the character test.

When the discretion to refuse or to cancel a visa is activated, the decision maker must consider the specific circumstances of the case in deciding whether to refuse or cancel the visa. In short, the decision maker must be satisfied that the person passes the character test (because of the operation of section 501(6)(a) on the basis of section 501(7)(a), (b) or (c) or section 501(6)(e)) or servicing a sentence of full-time imprisonment for an offence against an Australian law.

Where the visa holder has their visa cancelled under section 501(3A), they may request for the cancellation order be revoked under section 501CA. If the decision maker is not satisfied that the non-citizen passes the character test, the decision maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

Purpose of Direction No 99

The purpose of Direction No 99 is to direct the decision maker in deciding whether to refuse or to cancel a visa (under section 501) or revoke a cancelled visa (under section 501CA). The decision maker must comply with Direction No 99 (section 499(2)).

Direction No 99 contains factors that the decision maker must consider when deciding whether to refuse or cancel a visa or whether or not to revoke a cancelled visa.

Principles of Direction No 99

The principles of Direction No 99 are:

• Australia has a right to determine whether non-citizens who are of character concern be allowed to enter and/or remain in the country.
• Non-citizens who engage or have engaged in criminal or other serious conduct may be denied the privilege of coming to, or removed from, Australia.
• Australian community expect that the Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in, whether in Australia or elsewhere, conduct that raises serious character concerns.
• Australia has a low tolerance of any criminal or other serious conduct of non-citizens who contribute to the Australian community only for a short period of time. Those who have lived in the Australian community for most of their life, or from a very young age may be afforded a higher level of tolerance of criminal or other serious conduct.
• Decision makers must take into account the primary and other considerations relevant to the individual case. In cases where the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may not be enough to justify not refusing or cancelling the visa, or revoking a mandatory visa cancellation. For example, family violence conduct even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Exercising Direction No 99 discretion

The decision maker should give appropriate weight for both primary and other considerations. However, primary considerations are generally given greater weight than the other considerations; and 1 or more primary considerations may outweigh other primary considerations.

Direction No 99 Primary Considerations

There are 4 primary considerations in the Direction No 99 which the decision maker has to take into consideration when making a decision under section 501(1), 501(2) or 501CA(4).

1. Protection of the Australian community. Australian government is committed to protecting the community from harm from non-citizens’ criminal activity or serious conduct. Staying in Australia is a privilege for non-citizens who must be law abiding, respecting important institutions and will not cause or threaten hard to individuals or the Australian community. This is the expectation the Australian government have on non-citizens wanting to enter or remain in Australia.

The decision maker will give consideration to the nature and seriousness of the non-citizen’s conduct and the risk of the Australian community if the non-citizen commit further offences or engage in other serious conduct.

• The nature and seriousness of the conduct. The decision maker when considering the non-citizen’s criminal offending or other conduct, must have regard to (not exhaustive):

Very serious conduct

1. whether the conduct is related to violent and/or sexual crimes
2. whether the violent crimes is against women or children, regardless of the sentence imposed
3. whether the conduct is an act of family violence, regardless of whether there is a conviction or a sentence imposed

Serious conduct

1. causing or being a party to a forced marriage, regardless of whether there is a conviction or a sentence imposed
2. committing a crime against vulnerable people, for e.g., elderly and the disabled, or government representatives or officials because of the position they hold, or in the performance of their duties
3. any conduct that forms the basis that the non-citizen does not pass an aspect of the character test (section 501(6)(c))
4. a crime committed while in immigration detention or while escaping or having escaped from immigration detention (section 197A prohibiting escaping from immigration detention)

• a sentence imposed by the courts for a crime(s)
• how often did the non-citizen offended
• is the offending becoming more serious
• the cumulative effect of repeated offending
• whether the non-citizen has provided false or misleading information to the Department, including not disclosing prior criminal offending
• if the non-citizen has been formally warned, or being made aware, in writing, reoffended (if there was no formal warning, it is not considered to be in the non-citizen’s favour)

• The risk to the Australian community if there is further offences or engage in other serious conduct. Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, hence any risk that may be repeated may be unacceptable. The decision maker must have regard to:
• the nature of the harm if the non-citizen engage in further criminal or other serious conduct by considering information and evidence on the risk of re-offending; and evidence of rehabilitation completed, time spent in the community since most recent offence

When deciding whether to grant a visa, the decision maker must consider whether the risk of harm may be affected by the duration and purpose of the intended stay, the type of visa applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Family violence

The Australian government has serious concerns of people who engage in family violence. Those who has been convicted, found guilty or had charges proven that involve family violence; and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and has been afforded procedural fairness, is relevant consideration under section 501 or section 501CA.

Seriousness of the family violence

The following factors will be used to determine the seriousness of the family violence:

1. the frequency of the conduct and/or whether there is any trend of increasing seriousness
2. the cumulative effect of repeated acts of family violence
3. whether the non-citizen has been rehabilitated since the last known act of family violence; and
4. whether the non-citizen has accepted responsibility for their conduct
5. to what extent the non-citizen understands the impact of their behaviour on the victim and witness of that abuse, particularly children
6. efforts to address factors which contributed to their family violence conduct
7. whether the non-citizen has re-offended after family violence conduct is known and warned (absence of warning is not considered to be in the non-citizen’s favour)

Best interests of minor children in Australia affected by the decision

The decision maker has to consider whether the best interests of a child (under 18) is affected by section 501 visa refusal or cancellation or section 501CA non-revocation of visa cancellation. If there is more than 1 child, then each child’s best interests will be considered as their interests may differ.

Best interests of minor children – factors

1. nature and duration of their relationship. Less weight will be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including an existing Court order restricting contact)
2. what role the non-citizen is likely to play a positive parental role in the child’s future (up to 18) (including an existing Court orders relating to parental access and care arrangements)
3. the impact of prior conduct, and likely future conduct, and whether that conduct has, or will have a negative impact on the child
4. the likely effect of their separation and the ability for them to maintain contact in other ways
5. whether there are other persons fulfilling a parental role
6. child’s views (weight depends on age and maturity of the child)
7. evidence whether the child has been, or is at risk, or exposed to, family violence, or has been abused or neglected by the non-citizen in any way (physically, sexually or mentally)
8. evidence whether the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct

Expectations of the Australian community

Australian community expects non-citizens to obey Australian laws. The community expects the Australian government not to allow non-citizens who have engaged in serious conduct or where there is an unacceptable risk that they may do so, to enter or remain in Australia.

Australian community expects the government to refuse entry or cancel non-citizens’ visas if they raise serious character concerns through their conduct anywhere if their conduct (not necessarily involve physical harm to the community and the community generally) involve:

1. acts of family violence; or
2. forced marriage
3. committing serious crimes against women, children or other vulnerable members (e.g., elderly or disabled) of the community. Serious crimes include crimes of a violent or sexual nature; fraud, extortion, financial abuse/material exploitation or neglect against the elderly or disabled
4. crimes against government representatives or officials due to their position, or in the performance of their duties; or
5. suspected to, or involved in human trafficking or people smuggling, or in crimes that are of serious international concerns, for e.g., war crimes, crimes against humanity and slavery; or
6. worker exploitation

Other considerations

The decision maker when considering whether to refuse or cancel a visa or revoke a cancellation under section 501(1), 501(2) or 501CA(4), must also take into account:

1. Australia’s international non-refoulement obligations
2. the extent impediments if the non-citizen is to be removed
3. impact on victims
4. the non-citizen links to the Australian community (e.g., strength, nature and duration of ties to Australia) and the impact on Australian business interests.

International non-refoulement obligations

Non-refoulement means not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), the 1951 Convention relating to the Status of Refugees (Refugees Convention), and the International Covenant on Civil and Political Rights (the ICCPR).

It is relevant whether Australia has non-refoulement obligations (section 197C) because section 198 provides for the removal from Australia as soon as reasonably practicable, and section 189 requires unlawful non-citizens to be detent.

In addition, it does not mean when Australian non-refoulement obligation is enlivened, a visa cannot be refused or cancelled or mandatory visa cancellation must be revoked. This is because the non-citizen could be removed to another country where s/he does not face any risk of harm or the Minister can use his section 195A discretion to grant another visa or use section 197A discretion to make a residence determination to enable the non-citizen to live in a specific place in the community. Also, the non-citizen could also apply for a protection visa (click here to learn more about Subclass 866 visa) and will not be removed until the visa application is being determined.

Furthermore, international refoulement obligations will not be relevant unless the visa application or visa cancellation or revocation is a protection visa.

You should be aware that if the visa application or visa cancellation is a protection visa, you may not be able to lodge another protection visa application (section 48A) unless the Minister exercise his discretion under section 48B that section 48A does not apply to you. In addition, a visa application is refused or visa is cancelled under section 501 or visa cancellation is not revoked under section 501CA, you can only apply for a Bridging Visa Class WR (section 501E; r. 2.12AA).

Extent of impediments if removed

When considering whether to refuse or cancel or not to revoke your visa cancellation, the decision maker must consider the extent of any impediments you may face if you are deported back to your home country, for e.g., difficulty establishing yourself and maintaining basic living standards (comparing with local residents) taking into account your age, health; your language or cultural barriers; and any social, medical and/or economic support available to you in your home country.

Impact on victims

What this mean is if your visa application is refused or visa cancelled or your visa cancellation is not revoked, what is the impact  on members of the Australian community, including the victims  and their family of your criminal behaviour.

Links to the Australian community

If you have family members in Australia who are Australian citizens, PRs or having a right to remain definitely. The decision maker must consider the strength, nature and duration of these ties. Also, the nature of your family or social links with Australian citizens. The decision maker must consider how long you have lived in Australia. Less weigh will be given you start offending soon after arriving in Australia. More weight will be given to the time for contributing positively to the Australian community.

Impact on Australian business interests

The decision maker must consider if your visa application is refused or cancelled or cancellation is not revoked, and your employer’s business will be adversely affected because if you were not in Australia, it would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) or click here to decide whether to retain a registered immigration agent or a migration lawyer.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Long-term Australian residents deported – is this possible?

There is a clear distinction between lawful non-citizens (those who hold visas permitting them to enter and remain in Australia: s. 13 of the Migration Act) and unlawful non-citizens (those who do not hold visas – ss. 14 and 15)  and who are in consequence liable to detention and to removal from Australia: ss. 189, 196 and 198).

In Chetcuti v Commonwealth of Australia [2021] HCA 25, Chetcuti was born in August 1945 and arrived in Australia in July 1948 as a 3 year British subject. Between 1958 and 1959 he returned to his country of birth for about 8 months as a teenager. Chetcuti has remained in Australia for 73 years where he voted in local, State, and federal elections (s. 3 Commonwealth Electoral Act 1949). In addition, he registered for compulsory military service during the Vietnam war (National Service Act 1951) and eligible to sit as member of the House of Representative or in the Senate – Commonwealth Electoral Act 1918). Chetcuti was employed by the NSW Education Department where he worked as a teacher (Commonwealth Public Service Act 1922). Furthermore, he is eligible to be issued with an Australian passport (s. 4 of the Passport Act 1948 stopped issuing passports to British subjects in 1984).

In 1993, he was sentenced to 24 years for murder. In 2017, the Minister cancelled his Absorbed person visa (click here to learn more about APV) under s. 501 of the Migration Act (click here to learn more about Character test). After having served his sentence, Chetcuti was taken into detention where he remains.

His visa cancellation was set aside on judicial review by the Federal Court, the Minister then made another decision to cancel his visa. This cancellation was upheld on judicial review by the Federal Court in 2018 but was set aside on appeal to the Full Court of the Federal Court in 2019. The Minister immediately made another decision to cancel his visa again.

Chencuti argued that his detention was unlawful because he is not within the reach of the aliens power even though an alien (s. 51(xix) of the Constitution) is any person who was not born in Australia, whose parents were not Australians, and who has not been naturalised as an Australian (Nolan v MIEA (1988) 165 CLR 178 at 185).

Chencuti also argued that in Love v The Commonwealth (2020) 94 ALJR 198 there is a further exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70. This further exception is in respect of a person who was a natural born British subject and who commenced living permanently in Australia before 26 January 1949.

The HCA said that in Shaw v MIMA (2003) 218 CLR 28 (at 43, 87) it was confirmed that ‘the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”. Such a person is treated as an alien to the Australian community.

Chencuti missed out on becoming an Australian citizen on 26 January 1949 because he arrived in Australia on 31 July 1948 (s. 25(1)(d) of the Australian Citizenship Act) as he had then been ordinarily resident in Australia for a period of less than 5 years. After he had resided in Australia for a period of 5 years he did not apply to Australian citizenship by registration (under s. 25(1) of the Australian Citizenship Act 1948) even though he can do so until this was removed from the Australian Citizen Act at the start of the Australian Citizen Act 1973 on 1 December 1973.

The HCA said that Chencuti falls within the scope of the constitutional meaning of ‘alien’ in s. 51(xix), therefore he is within the application of the Migration Act such that he can be detained or removed from Australia.

In Pochi v Macphee (1982) 151 CLR 101 at 111, the Court rejected the notion that an alien could become a non-alien by absorption into the Australian community, hence Chencuti’s 73 years residence in Australia and the strength of any of his general bonds to the community is irrelevant.

The HCA said in 2017, Chencuti’s circumstances were as follows:

• he was born outside Australia;
• he had no Australian parents;
• he was not an Australian citizen because he never registered or applied to be an Australian citizen;
• he had not been naturalised; and
• he was a citizen of a foreign country.

Chencuti is an alien within s. 51 (xix) and was therefore a person to whom the Migration Act could apply – a long-term Australian resident can be detained and deported.

Long-term Australian residents deported | Is this possible? The above HCA case confirmed that long-term Australian residents can be deported if they do not satisfy s. 501 Character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer to a consultation (fee applies) if your visa has been cancelled or help you to understand whether it is possible for long-term Australian residents to be deported.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Long-term Australian residents deported | Is this possible? appeared first on Ozzie Visa.

Absorbed person visa (APV) is, by operation of law, taken to have been granted to certain people on 01 September 1994.

Usually, non-Australian citizens entering the country is considered to be “immigrants” but certain persons who entered Australia did not remain immigrants because at some point in time, they were “absorbed” into the Australian community and ceased to be immigrants. These people who arrived before 02 February 1984 had become absorbed should not become unlawful if they remain continuously in the country. They remained as permanent residents even though they were not holders of any entry permits.

From 01 September 1994, section 34 of the Migration Act applies and grants them a permanent visa or Absorbed person visa (APV). An Absorbed person visa (APV) is an Act-based visa that does not have a class or subclass but has been allocated an administrative code ZY-934. The visa grant will always be recorded as 01 September 1994. This visa will cease as soon as the holder leave Australia or granted a substantive visa or the Absorbed person visa (APV) is cancelled (e.g., under s. 501 or  501A or s. 501B).

An Absorbed person visa (APV) allows the holder to remain permanently in Australia but if they were to depart, the Absorbed person visa (APV) will cease, hence will not be able to return to Australia.

Absorbed person visa (APV) is a stay only visa, and does not allow the holder any travel outside of Australia as the visa does not have any travel (re-entry) component.

In short, an Absorbed person visa (APV) is (i) granted by operation of law (section 34), (ii) there is no application required as they are taken to have been granted an Absorbed person visa (APV) on 01 September 1994 if they meet the requirements of s. 34, and (iii) the Absorbed person visa (APV) will automatically cease when the holder leave Australia or if they are subsequently granted another substantive visa (s. 82).

Absorbed person visa (APV) & NZ citizens

If you are an NZ citizen residing in Australia on 01 September 1994 and satisfied the criteria for the grant of an Absorbed person visa (APV), you may have been granted an Absorbed person visa (APV) on 01 September 1994.

If you have been granted an Absorbed person visa (APV), you will not be holding a Special Category Visa (click here to learn more about SCV) on 01 September 1994 (r. 17 of the Migration Reform (Transitional Provisions) Regulations 1994).

However, if on 01 September 1994 you have been granted an SCV and not a holder of an Absorbed person visa (APV); and you were residing in Australia before or on 01 September 1994 as an exempt non-citizen or holding a permanent entry permit), you may be eligible to apply for a Resident Return Visa (click here to learn more about RRV) as a “former permanent resident”.

Absorbed person visa (APV) & British arrivals

British citizens who arrived in Australia before the commencement of the Migration Act 1958 on 01 June 1959 may be taken to have been granted an Absorbed person visa (APV) on 01 September 1994.

Leaving Australia while holding an Absorbed person visa (APV)

Section 82(8) applies to an Absorbed person visa (APV) holder as they are allowed to remain in but not re-enter Australia. Their Absorbed person visa (APV) ceases to be in effect if they leave Australia. Depending on the person’s circumstances, they may be eligible to apply for an RRV (or a Former Resident visa – click here to learn more) on the grounds that they are a former permanent resident.

Can Absorbed person visa (APV) be cancelled?

In Falzon v MIBP [2018] HCA 2, Falzon, a national of Malta, lived in Australia for 61 years after arriving at age of 3. He held an Absorbed person visa and a BF Transitional (Permanent) visa. In 2008 he was convicted of trafficking a large commercial quantity of cannabis and was sentenced to 11 years’ imprisonment. In addition, Falzon had previous convictions for drug-related and other offences. While servicing his jail term, his Absorbed person visa (APV) was cancelled under s. 501(3A). As a result, his BF visa was also cancelled.

Section 501(3A) allows the Minister to cancel a visa if the holder is serving an imprisonment term, and does not pass the character test because he has substantial criminal record (s 501(6) – does not pass the character test if, (s 501(7) if sentenced to death or life or 12+ months of imprisonment) or committed sexually based offences involving a child (s. 501(6)(e)).

After Falzon’s Absorbed person visa (APV) was cancelled, he was invited to make representation about revoking the cancellation (r. 2.52). Section 501CA(4) allows the Minister to revoke the cancellation if satisfied that he passes the character test or there is another reason why the visa should be revoked. However, a decision not to exercise the power conferred by s. 501CA(4) cannot be reviewed by the AAT.

The Assistant Minister decided not to revoke the cancellation decision as Falzon does not pass the character test. The Assistant Minister then consider if there is another reason why Falzon’s cancellation should be revoked. It was accepted that Falzon has strong family ties to Australia and his removal would cause substantial emotional, psychological and practical hardship to his family (2 sisters, 4 brothers, 4 adult children and 10 grandchildren in Australia). It was also accepted that Falzon has not been to his country of birth for many years and he may suffer social isolation and emotional hardship. Nevertheless, the Assistant Minister concluded that Falzon represents an unacceptable risk of harm to the Australian community and protecting the community outweighs his  interests (family and others). The cancellation of Falzon’s Absorbed person visa (APV) was not revoked.

At the HCA, Falzon argued that s. 501(3A) further punishes him for the offences he has committed.

Section 501, of which s. 501(3A) forms part, provides for the refusal or cancellation of visas on character grounds.

Section 501(1) allows the Minister to refuse to grant a visa if the applicant does not pass the character test.

Section 501(2) allows the Minister to cancel a visa if the Minister suspects that the holder does not pass the character test and the holder does not satisfy the Minister that he passes the character test.

A person whose visa is cancelled will become an unlawful non-citizen and will be liable to immigration detention (s. 189) for certain duration (s. 196) and until he is deported or granted a visa. That person’s detention will continue (s. 196(4)) unless a court determines that the detention is unlawful or that person is not an unlawful non-citizen. Section 196(5) provides that s. 196(4) will applies whether or not there is a real likelihood of removal under s. 189 or s. 199 in the reasonably foreseeable future and whether or not the decision relation to the person’s visa is unlawful.

You should be aware that ss. 189 and 196 authorise and require the detention of a non-citizen for the purpose of his removal from Australia (Al-Kateb v Godwin (2004) 219 CLR 562; Re Woolley; Ex parte Applicant M276/2003 (2004) 225 CLR 1; Chu Kheng Lim v MILGEA (1992) 176 CLR 1).

The HCA does not accept Falzon’s argument that because he is absorbed into the Australian community, he cannot be deported as an alien (Pochi v Macphee (1982) 151 CLR 101 at 111, 112, 116). In Pochi, Gibbs CJ said at [111] that a person’s nationality does not change by the length of residence or an intention permanently to remain in a country of which he is not a national.

In Chu Kheng Lim v MILGEA (1992) 176 CLR 1, the joint judgement (at 29-30) said that whilst an alien enjoy the protection of Australian law, his status, rights and immunities under the law differ from those of an Australian citizen.

The HCA said, in term of whether Falzon’s immigration detention is punishment, unless a decision is made to revoke his visa cancellation, his cancellation is valid. The HCA further accepted that s. 501(3A) constitutes a legislative judgement that a class of persons identified by their offending and imprisonment are not to remain in Australia as the Migration Act regulate the coming into and presence in Australia of non-citizens (s. 4(1)).

Further, the deportation of aliens does not constitute punishment, same as the cancellation of a visa is a step necessary to achieve the removal of the holder from Australia (Falzon at [47]). The power to cancel a visa by reference to Falzon’s character due to his prior offending is not inherently judicial in character. In the EM, s. 501(3A) was calculated to ensure that “noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved” (Parliament Debates (Hansard) 24 September 2014 at 10328).

The HCA held that s. 501(3A) did not authorise or require Falzon’s detention (s. 189 provides for detention of unlawful non-citizens; s. 196 deals with the duration of immigration detention). Section 501(3A) only requires his visa be cancelled on account of his criminal history and his imprisonment. Once his Absorbed person visa (APV) is cancelled, his legal status changed to an unlawful non-citizen which caused him to be liable for removal from Australia and to detention to facilitate his removal.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to discuss your Absorbed person visa (APV) or click here to search for a visa suitable to your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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PR cancellation & citizenship cancellation – can the Department cancel or revoke a child born in Australia to a PR (permanent resident) parent the child’s Australian citizenship if the parent’s PR is cancelled?

In the case of Shaheen (Migration) [2020] AATA 2568, the child’s mother, Shaheen, first came to Australia on a student visa. She later applied and was granted a Subclass 475 visa but never worked for her sponsor. She and her family later applied for and were granted a permanent visa, Subclass 187, in 2016. In 2017, their son was born in Australia and by virtue of s. 12(1)(a) of the Australian Citizenship Act 2007 was an Australian citizen because his parents were permanent residents at the time of his birth.

In late 2016 the Department received information (a dob-in) alleging that Shaheen’s sponsorship for the Subclass 475 and Subclass 187 were not genuine as she was involved in a paying for visa sponsorship scheme. Both sponsors when contacted by the Department confirmed that they have never sponsored Shaheen for any visa. Shaheen later admitted that she has never worked for either sponsor. In 2018 the Department cancelled her permanent visa under s. 116(1AB) for giving of incorrect information. Shaheen then applied to the AAT to review the cancellation.

At the Tribunal hearing, Shaheen claimed that both jobs were secured through a paid recruitment consultant. She admitted that she never commenced working for her Subclass 457 sponsor because she claimed they told her that there was no job for her after her visa was granted.

Shaheen told the Tribunal that the same recruitment consultant helped her find a sponsor for her Subclass 187 visa. She also confirmed that she did not work for this sponsor after her permanent visa was granted because they asked her to pay $30,000 or they will give her trouble.

As s. 116 cancellation is a discretionary cancellation, the Tribunal advised that if it decided that the ground of cancellation exists it must proceed to consider whether her permanent visa should be cancelled. And there are no matters specified in the Migration Act or the Migration Regulations that must be considered in exercising the s. 116 discretion. In short, they can put to the Tribunal anything they like the Member to consider in not cancelling their permanent visa.

She claimed that s. 116(1AB) does not apply to her because the incorrect information (fake docs) were provided by the recruitment consultant without her knowledge, therefore she did not provide any incorrect information in support of her sponsor’s nomination application. However, the Tribunal said that s. 116(1AB) applies to any incorrect information given which informs that grant of the visa and can relate to incorrect information provided in a linked and related nomination application. In Shaheen’s case, it was information given as part of the related Subclass 187 nomination, the approval of which informed the grant of the visa to her. The Tribunal finds the incorrect information was given by her recruitment consultant on her behalf to the Department. The incorrect information have been taken into account when granting her the Subclass 187 visa.

The Tribunal then consider whether her PR cancellation would cause her son’s Australian citizenship cancellation. Shaheen argued that her son is an Australian citizen, therefore he has a right to be able to live in Australia and enjoy all the benefits available to all Australian citizens. She also claimed that her other children who were not born in Australia but have lived most of their lives here should also enjoy the same benefits as it would be in their best interests (in accordance with CRC).

Can the Dept cancel a child’s citizenship if parent’s PR is cancelled?

The Tribunal consider whether her son’s citizenship could be cancelled or revoked under s. 34 of the Citizenship Act 2007 if there are circumstances involving offences or fraud. However, the Tribunal concluded that s. 34 does not apply to the son because he automatically acquired Australian citizenship at birth under s. 12 as Shaheen (and her husband) was a permanent resident.

If the Tribunal affirmed the Department’s decision to cancel their permanent visa, their subclass 187 visas will cease to be in effect from the date of cancellation onwards (s. 82(1) of the Migration Act). The cancellation does not have retrospective effect, causing the visa to have legally never been in effect. Hence, Shaheen and her husband were in fact permanent resident as at the time of their son’s birth for the purposes of s. 12(1)(a) of the Citizenship Act.

Shaheen’s son is extremely fortunate that he retains his citizenship even though at the time of his birth his parents permanent residency was only in effect because of incorrect information and migration fraud.

To learn whether long-term permanent residents can be deported, please click here.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to understand the consequences of your PR cancellation & citizenship cancellation or click here to learn about other s. 116 visa cancellation or click here on how to prevent visa cancellation.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Section 375A certificate is a power under section 375A of the Migration Act 1958 given to the Minister or delegate for Immigration to place restrictions on material or information given to the AAT by the Department.

The power under section 375A allows the Minister by certifying, in writing, that disclosing the material or info is contrary to the public interest. What this mean is that the material or info given by the Department to the AAT is given in confidence by the provider of the material or info to the Department.

The Minister has the power under section 375A, section 376 (in relation to Part 5 reviewable decisions) and section 438 (in relation to Part 7 reviewable decisions) to issue a certificate prohibiting the AAT to disclose the material or information given by the Department when reviewing your AAT review application (click here to learn more about AAT reviewing a Dept’s decision to cancel or refuse a visa). This certificate is known as non-disclosure certificates.

If the AAT provide you with a section 375A certificate, the Tribunal may tell you whether they believe the certificate is valid or not. The Tribunal is required to ensure that the certificate has been issued correctly because acting on an invalid certificate may lead to a jurisdictional error because it has to act according to law (MZAFZ v MIBP [2016] FCA 1081). It is important that the Tribunal’s disclosure to you must be sufficient and adequate to enable you to consider whether to challenge the validity of the certificate. In addition, the Tribunal must also disclose to you that it intend to rely on the adverse material or information covered by the certificate otherwise it can give rise to practical injustice to you as you are denied the opportunity to consider whether you could or should challenge the certificate, or seek access to the material or info, or apply to the Tribunal, as constituted, to disqualify itself on the basis of apprehended bias (Singh v MIBP [2020] 783  at 69).

The section 375A certificate is generally issued on the basis that the release of the material or info covered in the certificate must not be revealed to anyone other the Tribunal member reviewing your case. The revealing of the material or info is not in the public interest for it to be disclosed. Hence, the certificate must properly specified in the certificate a public interest reason why the material or info must not be disclosed to you (MZAFZ v MIBP [2016] FCA 1081). Even if the material or info received by the Department was given in confidence, they must actually have been given in confidence.

The Tribunal will provide you with the opportunity to comment if you think the certificate is not valid.

If the AAT received a section 375A certificate it must tell you so as the Tribunal has an obligation of procedural fairness to disclose that it has received a non-disclosure certificate. A breach of this obligation may result in jurisdictional error if the breach deprived you of the possibility of a successful review (MIBP v SZTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3) or cause you practical injustice, for e.g., the material or info listed in the certificate is relevant to your review (MIBP v CQZ15 [2017] FCAFC 194).

The section 375A certificate must include a statement that the material or info must only be disclosed to the AAT, that is, the Tribunal must not disclose the same material or info to anybody other than to the Tribunal member who is reviewing your case (s 375A(1)(b) and (2)(b)).

Section 375A certificate validity

When a section 375A certificate is issued by the Department, the certificate must specify the reason why the disclosure of the information or documents would be contrary to the public interest.

In some circumstances the AAT will need to look at the information or document covered by the section 375A certificate to determine whether they fall within the stated public interest reasons, therefore whether the certificate is valid or not (Akter v MIBP [2018] FCCA 3604). Material or information, such as Facebook posts, that are available publicly are usually not confidential, hence revealing them to you would not be contrary to the public interest.

The test whether a section 375A certificate is valid or not is whether the non-disclosure is for public interest immunity (Singh v MIBP [2017] FCCA 1331).

What is public interest immunity?

Generally, public interest immunity restricts the making or disclosing of relevant evidence as it would be against the public interest.

In deciding whether public interest immunity would apply depend on (Sankey v Whitlam (1978) 142 CLR 1):

• no harm should be done to the nation or to the public service by the disclosure of the doc or info; and
• the administration of justice would not be frustrated by withholding of the doc or info which must be disclosed if justice is to be done.

Usually, a section 375A certificate is issued to prevent or restrict the release of dob-in information given to the Department or the Department methods used for doc examination or identity verification. Hence, a section 375A certificate is used to encourage people to provide dob-in information. Usually, the consent of the person providing the dob-in information is required to be given to the review applicant and if no consent is provided, the information cannot be disclosed (Ahmad v MIBP [2015] FCCA 1038).

With regard to material or info provided by a third party, such as dob-in, it is generally considered that releasing the material or info to you is contrary to the public interest. This is because the material or info would reveal the identity of the informant. However, not every disclosure will be contrary to the public interest unless the certificate states that the material or info was provided by a third party or the material or info were not obtained from the internet by the Department (Singh v MIBP [2020] FCA 783 at [57]).

It is important that there must be rational or logical basis for the Department to issue the section 375A certificate and disclosing the material or info would be contrary to the public interest.

When is a section 375A certificate invalid?

A section 375A certificate is usually considered to be valid if a public interest reason is clearly specified in the certificate. The public interest reason must be of sufficient detail to identify the claimed harm to the nation or public service that its release could lead to.

However, regard will need to be had to the material or info covered by the section 375A certificate to establish whether they fall within the stated public interest reason. If it does not, then the certificate may not be valid (Akter v MIBP [2018] FCCA 3604). Furthermore, section 375A power to issue the certificate, like any other statutory power or discretion, must be exercised reasonably (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; MIBP v SZMTA (2019) 264 CLR 421). Therefore, the certificate can only be issued if there is at least probative, rational or logical basis for finding that the disclosure would be contrary to the public interest. If the certificate is issued arbitrary, irrationally or illogically is invalid on the ground of legal unreasonable, even if the disclosure was contrary to the public interest (Singh v MIBP [2020] FCA 783 at [55]).

A section 375A certificate which does not contain sufficient detail to properly identify a basis of public interest immunity may render the certificate invalid. In short, the certificate should identify the harm that could be done if the material or info is disclosed (MZAFZ v MIBP [2016] FCA 1081.

In addition, for a section 375A certificate to be valid, it must be dated and signed by the delegate (El Jejieh v MHA (No. 2) [2019] FCCA 840).

If section 375A certificate is invalid, can it be re-issued?

If the AAT considered the certificate to be invalid, it may ask the Department to reconsider it (BIE15 v MIBP [2016] FCCA 2978). The Department may revoke it if there is no valid basis or re-issue it after rectifying the problem.

Getting around section 375A certificate

You may be able to get around the non-disclosure requirement in a section 375A certificate by requesting the AAT to provide you with info pursuant to section 359A (if it is a Part-5 reviewable decision) or section 424A (if it is a Part-7 reviewable decision). Section 359A requires the Tribunal to provide you with clear particulars of any info that it considers would be the reason, or a part of the reason, for affirming the decision unreview and to invite you to comment on or respond to the adverse info.

Section 359A and section 424A do not apply to info that is non-disclosable info if they do not satisfy the public interest test or was not given in confidence.

When there is a conflict between section 375A and section 359A, section 375A is the leading provision even though both can usually be served without conflict (MIBP v Singh [2016] FCAFC 183).

When making a section 359A request, the Tribunal must consider how to provide sufficient particulars of the info (like a gist of the info) to you in order to comply with its section 359A obligation (Burton v MIMIA (2005) 149 FCR 20 – section 359A is not subject to section 375A).

You may also request the AAT, under section 362A, to access written material held by the Tribunal. However, the Tribunal will not release info covered by section 375A certificate. The AAT will allow you to make submissions about it decision not to disclose the material subject to the section 375A certificate (MZAFZ v MIBP [2016] FCA 1081).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation ((fee applies) regarding section 375A certificate.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Condition 8539 & condition 8549 – if either of these visa conditions is attached to your visa and you (as a primary or secondary visa applicant) holds a Subclass 489, while you are in Australia, you must live, study and work only in a specified (8539) or designated (8549) area. The “specified” area is a postcode listed in a legislative instrument. “Designated area” is defined in reg. 1.03 and is listed in a legislative instrument (for e.g. IMMI 16/044).

If you and your dependent(s) have been granted a Regional Provisional or Temporary visa (for e.g. Subclass 489) with a PR pathway, it is very likely the Department will impose condition 8539 and/or 8549 on the visa.

Condition 8579 which is imposed on Subclass 491 (click here to learn more) and Subclass 494 (click here to learn more) making it compulsory for the visa holder, while in Australia, must live, work and study only in a part of Australia what was a designated regional area at the time the visa was granted. What this mean is that the designated areas or postcodes are those listed in the legislative instrument that was in force when the provisional points-tested visa was granted (and not necessary the current instrument).

These visa conditions usually apply to points-tested skilled migration visas such as Class UZ Subclass 496 (Designated Area-sponsored), Class UX Subclass 495 (Independent Regional) and Class SP Subclass 489.

Nominated or sponsored regional points-tested visas

If you are nominated by a State or Territory government, you agreed to live in regional Australia or a low population growth metropolitan area or areas (condition 8539).

If you are sponsored by an eligible relative, you agreed to live in a designated area or areas of Australia (condition 8549).

If you and your dependent(s) are applying for the permanent visa after having satisfied the residence requirement, both you and all your dependents must have substantially complied with the conditions (8539 and 8549) to which your current Provisional visa is or was subject.    

Time spent overseas

Condition 8539 & condition 8549 do not apply while the visa holder is outside Australia. It is not a breach of the condition if you or your dependent(s) spent time overseas.

When condition 8539 & condition 8549 start?

If you are already in Australia, you will be expected to live, study and work in a specified regional area within 2 to 3 months of being granted the provisional points-tested skilled migration visa.

If you have been granted the provisional points-tested skilled migration visa while you are outside Australia, it is reasonable to expect that you will make arrangements to establish living arrangements in a specified regional area within 1 month of arrival.

Can I spend time outside specified regional area

When you applied for a provisional points-tested skilled migration visa, you sign an undertaking that you and your dependent(s) understand and accept the associated visa condition 8539 & condition 8549.

Under the department’s policy and as long as the visa holder continues to be employed or to live or to study in a specified regional area, you can travel to an area outside the specified regional area for work or recreational purposes, for e.g.:

• for business reasons
• for brief holiday or
• to undertake training for work.

So, it is acceptable for you to stay with someone in Melbourne on 1 weekend a month. You may breach condition 8539 & condition 8549 if you rent or buy a property in Melbourne so you can stay every weekend.

It is also acceptable if your place of work is in a specified regional area but your employer is elsewhere in Australia or overseas.

Study while on condition 8539 & condition 8549

You and/or your dependent(s) may only study in a specified regional area while in Australia.

Breach of condition 8539 & condition 8549

Most provisional general skilled migration visas (for e.g. Subclass 489) are granted for 3 or 4 years and the PR pathway (for e.g. Subclass 887) residence requirement is a total of at least 2 years, this does not mean that you and/or your dependent(s) can live outside the specified regional area for 1 or 2 year. In this example, you may satisfy the 2 years residence requirement but you and/or your dependent(s) will not have substantially complied with your visa condition 8539 & condition 8549.

If you or your dependent(s) have lived for more than 2 years in a specified regional area and live elsewhere in a non-specified regional area for the balance of your visa, you will be considered as not complying with condition 8539 & condition 8549. You will still be considered to have breached the condition even if you have been inadvertent or due to exceptional circumstances, for e.g. your dependent has lived with your in a specified regional area for more than 2 years but later has to move to, for e.g. Melbourne to pursue his education as his preferred course is only available there.

One fails, all fail

When you and your dependent(s) apply for permanent visa, you and each of your dependent must have complied with condition(s) of the earlier provisional visas.

Both the main applicant and each family unit member who has previously held a provisional general skilled migration visa must have substantially complied with the condition of that visa. Condition 8539 & condition 8549 is a “one fails, all fail” requirement.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you prevent visa cancellation or visa refusal due to breaching condition 8539 & condition 8549 or click here to find other visas.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Removal and deportation from Australia of non-citizens who do not have a valid visa to enter or remain in Australia has serious consequences. If your visa has been cancelled or your visa has expired will cause you to become an unlawful non-citizen.

Australian Migration law requires the detention of all non-citizens who are in Australia without a visa. If you are in Australia without a valid visa, you are known as an unlawful non-citizen. The Migration law requires all non-citizens who arrive in Australia without a visa (they are known as “unauthorised arrivals”), or those who arrive with a visa and their visa subsequently expired or cancelled to be detained. Children will also be detained if their visa have been cancelled or expired. This is known as mandatory detention which was introduced in 1992 to stop Indochinese unauthorised boat arrivals. Initially the maximum period of detention was 273 days or 9 months pending removal and deportation from Australia but was removed to allow for indefinite detention.

Unlawful non-citizens may be detained in 1 of the following Immigration Detention Centres or IDCs:

• Victoria – Maribyrnong
• NSW – Villawood
• WA – near the airport, Curtin and Yongah Hill (Northam)
• Christmas Island
• NT – Berrimah and Wickham Point
• QLD – Scherger
• Tasmania – Pontville

Unlawful non-citizens (whose visa has been cancelled or visa has expired) who are considered as low security risk may be detained in Immigration Transit Accommodation or ITAs which are available in Brisbane, Melbourne (Broadmeadows) and in Adelaide (Kilburn) pending removal and deportation from Australia.

According to the Department (on 31 May 2020) the average period of time for unlawful non-citizens held in immigration detention facilities pending removal and deportation from Australia was 553 days.

Can immigration detention be unlawful?

In the case of AJL20 v Commonwealth of Australia [2020] FCA 1305, AJL20 is a citizen of Syria who came to Australia on a Child Subclass 101 visa (click here for more information on Child visa) in May 2005. In October 2014 his visa was cancelled  on character grounds under s 501(2) (click here to learn more about character test). After his visa was cancelled, AJL20 became an unlawful non-citizen and was detained under s 189(1) pending removal and deportation from Australia.

The Minister accepted that Australia has protection obligations not to return him back to Syria but refused to grant AJL20 a protection visa under s 195A. Under s 198(6) the Department was obliged to remove AJL20 from Australia as soon as reasonably practicable.

Immigration detention is for removal and deportation from Australia

Immigration detention is only lawful if the detention is for the purpose of removing the unlawful non-citizen as soon as reasonably practicable from Australia (s 196 must be read together with s 198).

Section 189(1), if an officer knows or reasonably suspects that a person in Australia is an unlawful non-citizen, the officer must detain the person.

Section 196(1), an unlawful non-citizen detained under s 189 must be kept in immigration detention until:

• he or she is removed from Australia under s 198 or 199; or
• an officer begins to deal with the non-citizen under subsection 198AD(3); or
• he or she is deported under s 200; or
• he or she is granted a visa.

Section 198(1) requires an officer must remove as soon as reasonably practicably an unlawful non-citizen who asks the Minister, in writing, to be so removed.

Section 198(6) requires an officer must remove as soon as reasonably practicable an unlawful non-citizen if:

• the non-citizen is a detainee; and
• the non-citizen made a valid application for a substantive visa that can be granted while in Australia; and
• one of the following applies
• the grant of the visa has been refused and the application has been finally determined; and
• the visa cannot be granted; and
• the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in Australia.

AJL20 appealed to the FCA claiming that:

1. immigration detention of an unlawful non-citizen is lawful only if it for a permissible purpose.
2. section 198 requires unlawful non-citizen to be removed from Australia as soon as reasonably practicable.
3. if he was not removed from Australia, his detention is unlawful because his detention is no longer for a permissible purpose.
4. since July 2019 the Department did not pursued or carried out his removal as soon as reasonably practicable, his detention since that time has not been for the purpose of his removal from Australia and is unlawful.
5. because his detention was unlawful, he was falsely imprisoned and is entitled to damages and the Department must release him from detention (habeas corpus).

The Minister accepted that since July 2019 the purpose of AJL20’s detention has been his removal and deportation from Australia, and under s 198 AJL20 was to be removed from Australia as soon as reasonably practicable. However, the Minister argued that s 196(1) permit AJL20 to be detained lawfully “until” he is in fact removed from Australia irrespective of whether or not that removal is carried out as soon as reasonably practicable. The Minister further argued that if AJL20 was not removed as soon as reasonably practicable, the only remedy (an order of mandamus) available to AJL20 was to force the Minister to order his removal and deportation from Australia as soon as reasonably practicable.

In Plaintiff S4/2014 v MIBP (2014) 253 CLR 219, the Court said that the Minister could only lawfully detain unlawful non-citizens for the following purposes:

1. removing unlawful non-citizen from Australia;
2. receiving, investigating and determining an application for a visa to enter and remain in Australia;
3. determining whether to permit the applicant to make a valid application for a visa; or
4. possibly, determining whether to grant a visa without an application by the applicant.

The Court said that there were 2 periods of AJL20’s detention; 1^st was from 26 July 2019 to 27 November 2019 where the Minister accepted that no active steps were taken to remove AJL20 from Australia, and 2^nd was from 28 November 2019 to the date of judgement during which the Minister pursued the possibility of returning AJL20 to Lebanon (but not Syria).

The Court said that since 26 July 2019, AJL20 was not removed from Australia as soon as reasonably practicable because no steps at all have been taken to remove him to Syria, the country of his nationality. That failure was due to a recognition of Australia’s obligations not to refoul him to Syria. However, s 197C required that Australia’s non-refoulement obligations in respect of AJL20 be treated as irrelevant for the purpose of his removal and deportation from Australia as soon as reasonably practicable in accordance with s 198. Bromberg J concluded that AJL20 has, since 26 July 2019, been unlawfully detained and ordered him to be released immediately.

The Court said that s 196 does not authorise the ongoing detention of AJL20 when the removal and deportation from Australia purpose of his detention is no longer being carried out as soon as reasonably practicable. AJL20’s detention had to be brought to an end by his removal and deportation from Australia as soon as reasonably practicable otherwise his detention would be unlawful.

The Court also said that a “residence determination” made by the Minister under s 197AB which involves a non-citizen residing outside of a detention centre is another available temporary disposition. The Migration Act recognises that the powers to detain an unlawful non-citizen may not be lawfully exercised and that unlawful detention will be the subject of court orders (e.g. habeas corpus is available to every individual detained in Australia without legal justification) including unlawful non-citizen be released from detention (s 196(4)-(5)). Under s 195A the Minister may, if it is in the public interest, to grant a visa to a person in detention.

In summary, if you are detained because your visa has been cancelled or your visa has expired, your detention would only have been lawful while steps were being taken to arrange for your removal and deportation as soon as reasonably practicable from Australia to your home country (Plaintiff M76/2013 v MIBP (2013) 251 CLR 322). Your detention must be fixed by reference to what is both necessary and incidental to the execution of s 198 power to detain and the fulfilment of its purpose. It is incorrect to read s 196(1) as allowing your detention “until” the fact or the event of your removal from Australia. Section 196(1) provides that an unlawful non-citizen must be kept in immigration detention until the happening of 1 of the 4 events listed in s 196(1). Immigration detention is only lawful for the removal (a permissible purpose) from Australia of an unlawful non-citizen. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether 1  or other of the events specified in s 196(1) has in fact occurred. This is because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose. The motives or intentions of the Minister, or the officers are not relevant (ALJ20 at [79]). The purpose for the detention had to be carried out as soon as reasonably practicable, or the permissible purpose of the detention had to be undertaken and completed as soon as reasonably practicable (ALJ20 at [81]). Failure to take steps or sufficient steps to pursue the removal of detained unlawful non-citizen from Australia marked the departure of the permissible purpose from their detention.

The words “as soon as reasonably practical” in s 198 are intended to ensure that all reasonable means are employed to remove unlawful non-citizen, and not to define a period or event beyond which detention should be deemed to be unlawful (Al-Kateb v Godwin (2004) 219 CLR 562 at [295]). The Court said that it is the existence or absence of a purpose and not whether or not the purpose has been achieved (AJL20 at [87]). Furthermore, the removal from Australia is not country-specific (AJL20 at [90]; Al-Kateb at [227]).

If your detention is unlawful, the Department cannot detain you again as s 189 cannot cause you to be immediately re-detent (ALJ20 at [62]; Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 at [42] – [45]).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to prevent removal and deportation from Australia or click here to find a visa to suit your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Removal and deportation from Australia appeared first on Ozzie Visa.

Paying for visa sponsorship can result in your visa cancellation if the Department come to know that you have paid someone to sponsor you for a, for e.g., Subclass 482 visa (click here to learn more about TSS 482 visa) or a Partner visa (click here to learn more about Subclass 820 visa).

The Department has the power under section 116(1AC) to cancel your current visa for paying for visa sponsorship. This is commonly as “Cash for visas”.

Section 116 gives the Department a discretionary power to cancel your visa and subsection (1AC) states that the Minister may cancel a visa (the current visa) if he is satisfied that:

(a) your sponsor has asked for or received a benefit from you or someone else on your behalf in return for sponsoring you for a visa (‘sponsorship-related event’); or

(b) you or someone else on your behalf have offered or provided a benefit to your sponsor for sponsoring you for a visa (‘sponsorship-related event’).

Subsection (1AD) applies to subsection (1AC):

• whether or not you held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
• whether or not the sponsorship relates to the current visa or any previous visa that the visa you held; and
• whether or not the sponsorship (‘sponsorship-related event’) actually happened.

Section 116(1AD) provides that “cash for visas” cancellation ground will exist whether or not you held the current visa or a previous visa at the time the ‘payment for visas” activity happened. At the time the benefit was asked for, received, offered or provided, you may have held a previous visa, or may not yet have applied for, or been granted, a visa.

What section 116(1AD) means is that if you have paid someone to sponsor you for a visa, the Department may cancel your current visa even though it happened long before you were granted your current visa. For e.g., if you paid someone to sponsor you for a Subclass 482 visa, you were granted that visa but you are now holding a Regional Skilled Work Subclass 491 visa (click here to learn more about 491 visa). If the Department now found out that you paid someone to sponsor you for the Subclass 482 visa, it can now cancel your current Subclass 500 visa under section 116(1AC). Section 116(1AD) makes clear that the sponsorship-related event need not relate to the current visa or any previous visa and need not have resulted in the grant of a visa.

Paying for visa sponsorship can result in your visa cancellation because a benefit was asked for or received by, or on behalf of, you in return for the “occurrence of a “sponsored-related event” as define in section 245AQ.

Meaning of ‘benefit’

Paying for visa sponsorship can result in visa cancellation where a ‘benefit’ was paid or was received. Section 245AQ defines ‘benefit’ as:

• a payment or other valuable consideration; and
• a deduction of an amount; and
• any kind of real or personal property; and
• an advantage; and
• a service; and
• a gift.

To illustrate how paying for visa sponsorship can result in visa cancellation, we will use the case of Kang v Minister for Home Affairs [2019] FCA 186.

Kang is a citizen of NZ who entered Australia on a SCV 444 (click here to learn more about Subclass 444 visa). Kang was convicted for fraud and the making of false or misleading statements with the intention to obtain a financial advantage in relation to the operation of a migration business. He was sentenced to imprisonment for 12 months.

Kang, through a company, sought and received payments from visa applicants for the sponsorship of their visa applications. He received a letter from the Department informing him that they had become aware of the nature of his offending which could be used for cancelling his visa under section 116(1AC).

Kang had asked visa applicants to pay up to $50,000 for 1 of his companies to sponsor them for Subclass 457 visa and Subclass 187 visa.

The Department said that the payments by the visa applicants are ‘benefit’ in return for the occurrence of a ‘sponsorship-related event’ as defined in section 245AQ.

Kang was invited to comment and show why ground(s) for cancellation do not exist or give reasons and any supporting evidence for why his visa should not be cancelled.

You should note that the Federal Court does not have jurisdiction under section 476A to hear a decision by the Minister to cancel a visa under section 116(1AC). However, if the Minister did not personally make a decision to cancel your visa under section 116(1AC) then the cancellation decision (by a delegate) is a Part 5-reviewable decision (section 338) by the AAT under section 348.

You should also note that cancellation under section 116(1AC) does not depend on a criminal conviction or sentence or the outcome of your criminal trial. Paying for visa sponsorship can result in your visa cancellation simply on the basis that the Department becoming aware of you paying for someone to sponsor your visa. The information that the Department had become aware of could be from your criminal proceeding at a Court.

Section 116(1AC) or “cash for visas” ground can be used to cancel both permanent and temporary visas irrespective of your whereabouts. This means that your permanent visa can be cancelled if you are in Australia. You should note that section 117(2) applies to section 116(1) where a permanent visa cannot be cancelled if the visa holder is in Australia legally. Section 117(1) allows the Department to cancel a visa under subsection 116(1), (1AA), (1AB) and (1AC) before the visa holder enters Australia or when the visa holder is in immigration clearance (when clearing immigration at the airport or seaport) or when leaving Australia or in Australia.

Paying for visa sponsorship can result in your permanent or temporary visa cancellation.

Paying for visa sponsorship is against the law

It is an offence under section 245AR for a person to ask or to receive a benefit from another person for sponsoring a person for a visa (2 years imprisonment or 360 penalty units, or both: section 245AR(4)). It is also an offence under section 245AS for a person to offer to provide, or provides, a benefit to another person for sponsorship of a visa (240 penalty units). It is do not matter if the sponsorship related event does not occur.

If you are holding a permanent visa or Australian citizenship, the Department can also cancel your visa or citizenship, click here to find out more.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding paying for visa sponsorship can result in your visa cancellation.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Paying for visa sponsorship can result in visa cancellation appeared first on Ozzie Visa.

Permanent residence visa cancellation – the Department has the power to cancel a permanent residence visa (click here to learn more about Subclass 155 RRV) for a number of reasons.

Permanent residence visa cancellation can be mandatory or “automatic” if you failed the character test under s. 501. What this mean is, the Department will proceed with your permanent residence visa cancellation then notify you. You will be given an opportunity to convince the Minister (the Department) why the cancellation should be revoked.

Permanent residence visa cancellation can be discretionary if you, for example, provided incorrect information or answer in a visa application under s. 109. In this case, the Department will provide you with a Notification of Intention to Consider Cancelling (NOICC) your permanent residence visa. If you received a NOICC, you explain to the Department why your permanent residence visa should not be cancelled.

This article will only discuss mandatory permanent residence visa cancellation (click here to learn more about discretionary permanent visa cancellation).

Mandatory permanent visa cancellation

If you are serving a 12 month or more jail term, the Minister will cancel your permanent residence visa under s. 501(3A) before informing you that you may request the Minister to revoke the cancellation under s. 501CA(4). The Minister may revoke the cancellation if you make representations and the Minister is satisfied that you pass the character test (as defined in s. 501(6)). If you failed the character test, the Minister must consider if there is another reason why the cancellation should be revoked (s. 501CA(4)(b)).

If the Minister refused to revoke your permanent residence cancellation, you can apply to the AAT. The Tribunal is required by s. 500(6L)(c) to publish its decision within 84 days.

Direction No. 79 – ‘another reason’

The principles of Direction No. 79 emphasise the fact that entry into, and the right to remain in Australia is a privilege and that you are expected to abide by the law and not cause harm to the Australian community. Non-citizens who commit serious crimes should generally expect to be denied the privilege of entering or remaining in Australia and that Australia has a low tolerance of serious offending by those who only have participate in, and contribute to, the community for a short period of time. Credit is given to those who have made a positive contribution to the community, especially over extended periods of time, and that the impact on minor children and immediate family members of your forced removal.

Crimes against women, children or vulnerable members of the community are identified as being of a particular serious character.

Direction No.79 primary considerations are:

• protection of the Australian community from criminal and other serious conduct;
• the best interests of minor children in Australia; and
• expectations of the Australian community.

Whether your permanent residence visa cancellation will be revoked depend, among others, the nature and seriousness of your conduct and the risk to the community if you were to commit further offences.

“Other considerations” may include:

• international non-refoulement obligations;
• strength, nature duration of ties;
• impact on Australian business interests;
• impact on victims; and
• extent of impediments if removed.

In considering whether your permanent residence visa cancellation should be revoked, the Tribunal must determine whether or not ‘another reason’ exists as set out in ministerial Direction No. 79.

Direction No. 79 lists 3 ‘primary’ and 5 ‘other considerations’ which must be addressed by the Tribunal. You should note that “primary” considerations are not necessarily given more weight than “other” considerations (Suleiman v MIBP [2018] FCA 594 [23]-[26]; Minister for Home Affairs v HSKJ [2018] FCAFC 217 [24] and [37]. The Tribunal has absolute discretion regarding the ‘choice of, and weight given to’ the material (Aporo v MIAC [2009] FCAFC 123 at [45]. The Tribunal is entitled to accept or reject weight to be given to the evidence (Lee v MIMIA [2005] FCA 464 at [27]). The weighing of various pieces of evidence is a matter for the Tribunal (MIAC v SZJSS [2010] HCA 48 at [33].

Evidence to support revocation of permanent residence visa cancellation

• Clinical psychologist’s report with tests (e.g., psychometric)  that determine the probability of your reoffending, factors (e.g. your age, gender, marriage, children, social ties, accommodation, employment, type of offence and your prison sentence) that are protective against your reoffending, impact of your deportation on yourself and your family.
• Character statements from friends, colleagues, supervisor who are aware of your offending
• Sentencing Judge’s remarks, whether your offending is at the bottom range of objective seriousness, whether you have demonstrated contrition and remorse, whether you are a willing or reluctant participant in the criminal activities, whether you have a low risk of reoffending (recidivism), whether you have a good prospect of rehabilitation, whether there are any special circumstances such as children, whether you are a person of good character before offending.
• The impact of the harm caused by your offending to the victim and the community
• Indication of any trend of increasing seriousness of your offending

The question of the risk of reoffending (recidivism) must be addressed by consideration of what expect opinion is (Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876 (13 August 2020) at para 70).

The starting point is the remarks by the sentencing Judge (e.g. what motivate you to commit the offence, whether you voluntarily or forced to commit the offence, whether you had shown remorse and contrition, and your prospect of rehabilitation).

Next, the assessment made by the officer of Corrective Services (usually given to the Court as a sentencing assessment) detailing, among others, your character and behaviour while in custody.

The next expert opinion is your treating clinical psychologist outlining your risk of reoffending.

You should note that the decision-maker is “not under an obligation to evaluate in any particular way the risk of harm to the Australian community” of you reoffending (Coker v MIBP [2017] FCA 929 at [58] and [62]). And there is no “prescribed formula” which a decision-maker must follow in this regard (BSJ16 v MIBP [2017] FCAFC 78 at [43]).

In deciding whether to revoke your permanent residence visa cancellation, the decision-maker has to take into consideration the best interests of minor children in Australia.

Best interests of minor children in Australia

The decision-maker must make a determination about whether the revocation of your permanent residence visa cancellation is or is not in the best interests of the children (can be your children or children of your relatives), where they are or would at the time when the decision is made, be under 18. If you have more than 2 children, the best interests of each child should be given individual consideration, to the extent that their interests may differ (VKTT v Minister for Home Affairs [2019] FCA 1018 at [22]; Minister for Home Affairs v Stowers [2020] FCA 407 at [60]).

You should provide evidence (e.g. letters or statements) that you have played any significant part in the children’s development, care or upbringing. And you should highlight any significant differences (e.g. social [health and education services], political and economic) between Australia and your home country.

Often the best interests of a small children are sufficient to tip the balance for the decision-maker to revoke the cancellation of your permanent residence visa (Vu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2876 (13 August 2020) at [120]).

Expectations of the Australian community

It is important to know that it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a ‘primary consideration” (FYBR v Minister for Home Affairs [2019] FCAFC 185 at [67]). In short, it is not the decision-make who makes an assessment of community values on behalf of the community. Community expectations are simply, and informally expressed as “if you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive. What this mean is that, if you committed serious criminal fences giving rise to character concerns should have your visa application refused or cancelled. If you have committed a serious offence, the expectations of the Australian community weigh against you. Community expectations are not necessarily punitive or seem to be punishing you a second time for a crime that you have already paid a price by been imprisoned (Waits and MIMIA [2003] AATA 1336 at [36]).  Usually people should be given a second chance and a chance at rehabilitation is something which is quintessentially Australian (Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [91]).

However, it is a matter for the decision-maker to assign the weight to that negative conclusion that he or she sees fit. Nevertheless, the community has a low level of tolerance for criminal offending behaviour which is to be balanced against being given a second chance. Often the expectations of the Australian community will only be given marginally against the revocation of your permanent residence visa cancellation.

Other considerations

You should note that “other” considerations are not taken as “lesser” but rather simply as “non-primary”.

Other considerations often include, but not limited to:

• International non-refoulement obligations
• Impact on Australian business interests;
• Impact on victims.

Strength, nature and duration of ties

You should emphasize and describe the time you have spent in Australia. If you were to argue the potentially negative effect upon your family members should you be deported, you must provide evidence of such impact.

Extent of impediments if deported

This is more difficult for the decision-maker to assess. Nevertheless, you should explain the difficulties you may encountered if your are returned to your home country. Losing of face if you are deported will not be given weight in favour of revoking your permanent residence visa cancellation.

What is importance is your potential separation from your children or partner if they are unable to return with you if you are deported.

Please note that Direction No 79 is replaced by Direction 90, click here to learn more.

To learn whether long-term permanent residents can be deported, please click here.

To learn more about section 501(2) visa cancellation on character grounds, click here or to learn more about section 501 refusal and cancellation of visa or PR and visa cancellation for failing the character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you to understand how you can prevent your permanent residence visa cancellation.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Permanent residence visa cancellation | Direction No 79 appeared first on Ozzie Visa.