Long-term residency no bar to deportation

The Minister for Immigration has the power under s.501 of the Migration Act 1958 to cancel a person’s visa (including a permanent resident visa) if that person fails to satisfy the Minister that they pass the “character test”. In certain circumstances, a person’s visa will be automatically cancelled.

Between the 2013-2014 and 2014-2015 financial years, the number of visa cancellations on character grounds increased fivefold.

Visa cancellations can have enormously serious consequences. The person affected may be separated from loved ones and friends for a long period of time. They may be held involuntarily at an immigration detention center, removed and effectively excluded from returning to Australia. A person can have their visa cancelled no matter how long they have been resident in Australia or how many personal ties they have here. Recent examples of cancelled visas on character grounds include people who have lived in Australia most of their lives, or been resident here for over 40 years.

Character test

A person does not pass the character test if they fall within any of the grounds specified in s.501of the Act. These grounds can be grouped into the following five categories:

• substantial criminal record;
• conviction for immigration detention offences (including escaping from criminal detention, or any offence which was committed while the person was in immigration detention, or during or after an escape from immigration detention);
• association with persons suspected of engaging in criminal conduct;
• past and present criminal or general conduct (eg war crimes, crimes against humanity, terrorist activities, drug trafficking, “political extremism”, extortion, fraud, or a “history of serious breaches of immigration law”);
• significant risk of particular types of future conduct (eg if there is significant risk that the person would engage in criminal conduct; harass, molest, intimidate or stalk another person; vilify a segment of the Australian community; incite discord in the Australian community or represent a danger to the Australian community).

If a person fails the character test, their visa is not automatically cancelled. The decision-maker must decide whether to exercise their discretion under section 501 to cancel the person’s visa. If the person thinks that the Department is wrong, and that they should pass the character test, they can challenge DIBP’s assessment. This must be done in writing, within 28 days of receiving the Department’s letter.

Mandatory (automatic) cancellation

A visa will be automatically cancelled if the visa holder:

• has been sentenced to a term of imprisonment of 12 months or more, even where the person only served part or none of their sentence (due to having a suspended sentence, or early release due to good behaviour), or
• has had a sexually based offence involving a child proven against them by an Australian or foreign court,

And

• the visa holder is serving a sentence of imprisonment, on a full-time basis, for an offence against a law of the Commonwealth, a State or a Territory.

If a visa is automatically cancelled, the affected person has 28 days after they are taken to have received the notice to request revocation of the decision. This time frame cannot be extended. When a visa has been automatically cancelled that person becomes unlawful. After they complete their prison sentence they will be transferred to an immigration detention centre   while the Department considers the cancellation decision. They will remain in detention unless they voluntarily depart Australia.

Revocation of cancellation

The Migration Act provides that if the decision to cancel a visa is revoked, the original decision (ie to cancel the visa) is disregarded and the person’s visa is reinstated.

Decision made by the delegate of the Minister

If the decision not to revoke the original decision is made by a delegate of the Minister, that person is entitled to have that decision reviewed by the Administrative Appeals Tribunal.

Decision personally made by the Minister

If the Minister makes the decision personally, there is no right to review the decision to the Administrative Appeals Tribunal and as such there is no merits review option available. Th only option would be to seek judicial review through the courts on the basis of a legal error in the way the decision was made. Such an appeal must be made within 35 days of the notification of the decision.

Seek professional assistance

If you are aware that your visa may be cancelled it is vital to obtain professional legal advice as soon as possible. There are opportunities to make submissions in regard to a cancellation, or revocation and you must provide sufficient reasons as to why your visa should be reinstated, addressing guidelines set out by the Minister. Strict time-frames apply. As consequences of not responding in these situations are dire you must act without delay.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9299 5815 or email [email protected].