Why Pay Attention to Court Decisions Involving Character Cancellations?
Legal decisions are more than academic exercises; they define how visa decision-makers interpret statutes. When a court reviews a visa cancellation on character grounds, it clarifies what evidence the Administrative Appeals Tribunal (AAT) can consider and how far an applicant may challenge a conviction. By studying such decisions, individuals facing similar issues can understand their prospects, avoid futile arguments and focus on evidence that matters. The 2019 Full Court case summarised here shows that there are strict limits on challenging the facts underlying a criminal conviction when seeking revocation of a mandatory cancellation, a lesson that has broad application across visa categories.
What Happened to the Applicant, and Why Was His Visa Cancelled?
The case involved a protection visa holder convicted of violent offences.
The applicant arrived in Australia on 28 June 2009, was granted a protection visa in September 2010 and later became involved in a violent community dispute. After a jury trial in the District Court of Western Australia, he was convicted on 30 October 2013 of grievous bodily harm and unlawful wounding. He received concurrent sentences of 2 years and 6 months for grievous bodily harm and 12 months for unlawful wounding. Because his term exceeded 12 months, he was deemed to have a substantial criminal record under s 501(7) of the Migration Act 1958.
Section 501(3A) of the Act requires the Minister to cancel a visa if the person does not pass the character test (for example, because of a substantial criminal record) and is serving a full-time term of imprisonment. After the applicant’s conviction, his visa was automatically cancelled.
Refusal to revoke the cancellation. The applicant made representations seeking revocation under s 501CA(4). A delegate of the Minister was not satisfied that he passed the character test or that there was another reason to revoke the cancellation, and therefore refused to revoke. The applicant sought merits review in the Tribunal.
What Evidence Did the Applicant Present to the Tribunal?
Before the Tribunal, the applicant expressed remorse but denied key aspects of the offences. He claimed he acted in self-defence, tried to break up a fight and did not use a metal bar, contradicting the sentencing judge’s findings. The Tribunal stated that it cannot contradict or go behind a conviction and examine the facts upon which it is based and cited longstanding authority for that proposition. It added, however, that an applicant may present matters relating to the conviction so long as they do not contradict the facts found by the court. The Tribunal ultimately affirmed the cancellation, emphasising community protection, the seriousness of the offences and the applicant’s lack of insight.
What Legal Questions Did the Full Court Consider?
The applicant challenged the Tribunal’s decision, arguing that:
The Tribunal allegedly applied the wrong principle by thinking it could not examine the facts underlying his conviction or consider evidence inconsistent with the sentence.
By refusing to consider his alternative account, the Tribunal supposedly failed to perform its fact-finding task or made irrational findings.
The Full Court considered whether an administrative decision-maker reviewing a mandatory cancellation can look behind the conviction and whether the Tribunal misunderstood or misstated the law.
What Did the Majority Hold About Impugning a Conviction?
The majority (Justices McKerracher and Colvin) restated the governing principles drawn from earlier cases such as Daniele and Gungor. They noted a key distinction:
The essential facts underlying the conviction are not open to review; the decision-maker must accept both the conviction and the facts necessary to it, although the circumstances of the conviction (such as remorse) may be considered for other purposes.
The conviction itself is conclusive only of the fact of conviction. The decision-maker may examine the underlying facts, but the burden is heavy on the applicant.
Because the mandatory cancellation under s 501(3A) depends on the fact of conviction and sentence exceeding 12 months, the case fell within the first category. The Tribunal’s statement that it “cannot contradict or go behind a conviction” reflected the correct principle. The majority emphasised that the Tribunal recognised the applicant’s right to present evidence about the circumstances of the conviction so long as it did not contradict the facts found by the criminal court. Therefore, the Tribunal did not misstate the law, and its approach was lawful.
Regarding the second ground, the majority explained that the applicant’s self-defence narrative directly contradicted the jury’s findings and the sentencing judge’s remarks, and thus could not be considered. There was no irrationality in the Tribunal’s decision to give no weight to such evidence. The appeal was dismissed.
What was the dissenting view?
One judge (Justice Derrington) reached a different conclusion, suggesting that an administrative decision-maker considering whether there is “another reason” to revoke a cancellation under s 501CA(4) should not be prevented from examining the facts underlying the conviction. His Honour considered the statutory scheme and authorities and hesitated to adopt the majority’s categorical approach. However, because the majority’s reasoning prevailed, the appeal was dismissed.
What are the practical implications for applicants with criminal convictions?
When seeking revocation of a mandatory cancellation under s 501(3A), applicants cannot relitigate the criminal case. They must accept the conviction and the essential facts found by the court and cannot submit evidence contradicting those facts.
Applicants may offer evidence about their remorse, rehabilitation and personal circumstances surrounding the offence, provided this does not contradict the court’s findings. This includes explanations of mitigating factors, support networks and steps taken to address offending behaviour.
The Tribunal and Minister focus on protecting the Australian community; evidence of genuine remorse, behavioural change, completion of rehabilitation programs and a low risk of reoffending is crucial.
Because the character test and mandatory cancellation powers are strict, judicial review will rarely succeed unless there is an error of law. Arguments that attempt to reargue the criminal case are unlikely to succeed.
While this case concerns character cancellations, the principle of accepting official findings applies across visa categories. For example, student visa applicants must satisfy the Genuine Student (GS) requirement by providing truthful, consistent statements and evidence about their circumstances; generic and vague claims without evidence are given little weight.
Applicants facing cancellation or character issues should consult an immigration lawyer to prepare comprehensive submissions. A professional can help identify permissible evidence, address statutory criteria and avoid arguments that the decision-maker cannot legally entertain.
How Can Agape Henry Crux Help You
If you are in a similar situation to this case, speak to an Accredited Specialist in Immigration Law for tailored advice to your case before it is too late. You can book a Migration Planning Session to schedule a time with one of our immigration lawyers to seek professional advice by calling 02-83105230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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