Possible Ground for Revoking Mandatory Visa Cancellation Involving Imprisonment of 12 Months

The decision in Da Silva[1] held that under certain circumstances, mandatory cancellation of an applicant’s visa on the basis of character test under subsection 501(3A) of the Migration Act 1958 (‘the Act’) may be revoked.


Why Was Da Silva’s Partner Visa Cancelled?

 In Da Silva, the applicant’s Partner visa was cancelled on 26 June 2017 under s 501(3A) of the Act because he had been sentenced to a term of imprisonment of 12 months or more and was serving that sentence in prison. The applicant was charged with offence relating to ‘learner/provisional driver driving with novice range prescribed content of alcohol ‘and ‘assault occasioning actual bodily harm’, but those sentences were set aside on appeal and community service orders were imposed.


The applicant also was charged with offence of ‘contravene prohibition/restriction in AVO (domestic)’ and ‘stalk intend fear physical harm (domestic)’ and he was sentenced to eight (8) months in respect of both those offences, commencing 2 March 2015 and concluding on 1 November 2015. 


The most serious offences committed by the applicant involved two counts of common assault, one ‘armed with intent to commit indictable offence’, one ‘assault occasioning actual bodily harm’; and a ‘resist officer in execution of duty’ charge. He was prisoned from 12 January 2018 to 1 July 2018.


The applicant sought a review from the Tribunal to review the delegate’s decision. The Tribunal set aside the delegate’s decision and decided to revoke the mandatory cancellation of the applicant’s visa.


Tribunal’s Reasoning to Revoke the Mandatory Cancellation of the Partner Visa.

 As part of the decision-making process, the Tribunal considered that Mr Da Silva had engaged in all rehabilitation courses available to him and had attempted to grant qualifications to reform himself and improve his work capacity so he could go back to live in the Australian community. Based on those facts along with supporting evidences, the Tribunal accepted that Mr Da Silva was genuinely remorseful for his conduct and he genuinely wanted to be a role model for his children.


The Tribunal also took into account the very favorable and supportive letters and oral evidence from his partner’s husband and sister, former employer and his children, which also proved that the applicant was genuine about his commitment not to re-offend or engage in other serious conduct.


The Tribunal considered that Mr. Da Silva had formed aa strong attachment to his 4 children. If the applicant was to be removed from Australia, he could continue contacting them by telephone or digital means but visits may not occur at all in the foreseeable future. Considering the negative impacts on Mr. Da Silva and his children, the Tribunal considered that it is in the best interests of both younger children that the cancellation decision be revoked.


Overall, the Tribunal reached that the correct and preferable decision was to revoke the mandatory cancellation of the Applicant’s visa.


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[1] Da Silva and Minister for Home Affairs (Migration) [2019] AATA 68 (25 January 2019)