Mandatory Cancellation in the Case of Substantial Criminal Record
This matter of Barron and Minister for Home Affairs (Migration)  AATA 315 relates to an application for review of a decision made by a delegate of the Minister of Home Affairs to exercise mandatory cancellation of the Applicant’s visa.
On 14 December 2017, the Applicant was convicted and sentenced for a number of offences.
The Applicant’s visa was mandatorily cancelled on 18 January 2014 on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.
Section 501(3A) Migration Act provides that the Minister must cancel a visa that has been provided to a person if the Minister is satisfied of the following:
a) The Minister is satisfied that the person does not pass the character test because of the operation of:
(i) Paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) The person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is defined in s 501(5)(a) of the Act. A person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7):
a) The person has been sentenced to death; or
(b) The person has been sentenced to imprisonment for life; or
(c) The person has been sentenced to a term of imprisonment of 12 months or more;
On the available evidence, there was a high likelihood that the Applicant would engage in further criminal offending of similar nature should he be returned to the Australian community. The Tribunal affirmed the decision under review in favor of non-revocation.
When exercising discretion to revoke cancellation of a visa, decision-makers will take into consideration:
· The nature of and the seriousness of the non-citizen’s conduct to date; and
· The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
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