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Immigration: failing the Character Test & Mandatory Cancellation of Visa

Australia has a very robust immigration system whereby the governments of all persuasions have maintained the position to keep society safe from people with criminal dispositions. There is a special mechanism built into the Migration Act 1958 – to ensure every potential migrant passes the “Character Test” before he or she can be allowed to stay on in Australia on a permanent basis.

Section 501 of the Migration Act 1958 lists a variety of reasons why someone may not pass the character test. Subsection(6) of section 501 has the full list of reasons, but examples include:

  • because the person has a substantial criminal record
  • because the person may represent a danger to the Australian community
  • because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.

For convicted criminals: Mandatory Cancellation by the Minister
Section 501(3A) states that a visa must be cancelled when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence.  This is called a mandatory cancellation.

But the Act also includes relief for those whose visa is cancelled under Section 501 (3A). Section 501CA(4)of the Migration Act 1958 provides a remedy as follows:

Section 501CA(4) says the Minister may revoke the original visa cancellation decision if:

(a)  the person makes representations in accordance with the invitation; and

(b)  the Minister is satisfied:

(i)  that the person passes the character test (as defined by section 501); or

(ii)  that there is another reason why the original decision should be revoked.

For those legally minded, the relief defined and envisaged in Section 501CA(4) seems vague insofar as  it does not stipulate conditions or circumstances under which such a relief will be granted. After a court in Australia has convicted a person of crime punishable with more than 12 months’ imprisonment, the person has done their time in jail, what representations can the person make.

Minister Dutton
Home Affairs Minister Peter Dutton

Further, how to satisfy the minister to pass the character test when the applicant lost his or her visa because of their conviction and 12 months plus imprisonment in the first place.

And finally, what fact or circumstance will constitute ‘another’ reason capable of persuading the minister to overturn the original decision of cancelling their visa by overlooking or going against the court’s decision of convicting and sentencing the applicant.

A full court of three judge bench of the Federal Court of Western Australia was faced with one such case involving a Sri Lankan refugee claimant. In the judgement delivered on 22 November, the difficulties embedded in the claiming of such a relief were at full display.

The facts of the case:
The refugee, whose name has not been released, aged 22, in 2009, arrived in Australia from Sri Lanka.

On 15 September 2010, he was granted a protection (subclass 866) visa.

On 19 August 2011 he was involved in a violent altercation between members of the Sri Lankan community.  The assault involved a piece of gym equipment (a metal bar) used by him, to strike two victims who both sustained head injuries.  He along with three other accused, were charged with grievous bodily harm and unlawful wounding. He pleaded not guilty to the charges.

On 30 October 2013, he was convicted of these offences in the Perth District Court.

On 19 December 2013 he was sentenced to two and a half years’ imprisonment for the grievous bodily harm offence and twelve months’ imprisonment (to be served concurrently) for the unlawful wounding conviction.

Having been convicted and sentenced to more than 12 months’ imprisonment, his visa was the subject of a mandatory cancellation.  On 15 July 2015, his protection visa was cancelled and he was invited to request and make representations to the minister to revoke cancellation of his protection visa.

On 3 August 2015, he made a request for and representations not to revoke cancellation of his visa.

Adverse ITOA Assessment
On 13 February 2017, an International Treaties Obligation Assessment (“ITOA”) was conducted.  The ITOA concluded that he was no longer a person to whom Australia owed protection obligations and that Australia did not, at that time, have any non-refoulement obligations to him.

On 3 March 2017, a delegate of the Minister decided not to revoke the cancellation decision.

Legal battles – Appeal to the Tribunal

On 8 March 2017, he lodged an application for review of the non-revocation decision in the Administrative Appeals Tribunal (“the Tribunal”).

On 29 May 2017, the Tribunal decided to affirm the decision of the Minister’s delegate and to not revoke the cancellation decision. The Tribunal took the position that it cannot contradict or go behind a conviction and examine the facts upon which it is based. Clarifying it said that is not to be taken as denying the right of the applicant to present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction.

Appeal to the Federal Court – single judge
He lodged an appeal to the Federal Court where a single judge heard his appeal and on 18 November 2018, decided to affirm the Tribunal’s decision.

Appeal to the FULL Federal Court

Justice Neil Mckerracher
Justice Neil Mckerracher

He took the next step and appealed to the full court of the Federal Court of Western Australia. Three judges – Justice McKerracher, Justice Colvin and Justice Derrington heard the matter and with a 2-1 majority found no errors in the Tribunal’s decision and as a result to not revoke the cancellation of his protection visa.

As stated above, the battle for him was how to overcome mandatory cancellation provided in Section 501(3A) after his conviction and sentencing. And to convince the minister or the Tribunal, he tried to explain his circumstances but met with a stern response that it could not examine the facts upon which his conviction was based and could not receive evidence that was inconsistent or contradicted evidence relied on by the District Court of Western Australia in convicting and sentencing.

The creative legal argument
Before the full Federal court’s judges, his lawyers argued a fine legal point that as a matter of law the Tribunal was not entitled to go behind the conviction itself, but in considering revocation the Tribunal was entitled to receive evidence and to give such weight as it considered appropriate, which was contrary to or inconsistent with the evidence on which the conviction was based.  Thus, there has been a jurisdictional error by the Tribunal.

His lawyers based the argument saying that:

  1. the exercise of the power under Section 501CA(4) is not founded on the fact of conviction or sentence. Rather, it is founded on the fact of an original decision having been made under Section 501(3A) and the Minister being “satisfied” that the person either does pass the character test (which necessarily involves a direct challenge to the basis of the exercise of the power under Section 501CA(4)) or that there is another reason why the original decision should be revoked; and
  2. as a matter of statutory construction, Section 501CA(4) should not be construed so as to oblige the Minister to accept the conviction or sentence and its essential facts. Section 501CA(4) does not impose any obligation to accept past convictions and their essential facts when determining whether there is “another reason” why the original decision should be revoked.

Essentially, they argued that where the jurisdictional fact is the Minister’s (or that of any decision maker’s including the Tribunal’s) satisfaction, rather than the conviction or sentence, there is nothing in the statute to suggest that the decision-maker cannot look behind the facts that underpin the conviction or sentence. 

Their case was that a convicted or sentenced person is still the same convicted or sentenced person when he makes representations to the Minister, who is free or has unrestricted power to accept those as ‘another reason’ and those representations may include facts entirely inconsistent with the foundation of him being convicted or sentenced.

And thus, the Tribunal by refusing to allow or hear their client committed an error.

Justice McKerracher and Justice Colvin, providing separate arguments and reasons, agreed and delivered the majority verdict that the Tribunal’s decision did not suffer from any jurisdictional errors.

But, providing a minority judgement and detailed reasons, Justice Derrington found that the Tribunal was wrong to not allow the applicant provide evidence to support his case, even if it would look going behind his conviction and sentencing. Justice Derrington opined that the circumstances of public policy in Australia have changed and are changing. According to him, given the implied intent, Section 501CA(4) provides the decision maker (including the Tribunal) powers to go beyond than envisaged by the other two judges.

“Where the rule derived from that line of authority is tied (elusive though that tie might be) to the “foundation” or “genesis” of the power, and the preconditions to the power have been substantially modified here, it is suitable to instead dispose of the appeal on the basis of the provision as it now stands…”, Justice Derrington said.

Representations under Section 501CA(4): 

Lawyers argued that a convicted or sentenced person is still the same convicted or sentenced person when he makes representations to the Minister, who is free or has unrestricted power to accept those as ‘another reason’ and those representations may include facts entirely inconsistent with the foundation of him being convicted or sentenced…

Section 501CA(4) of the Act is evidence of the fact that there is no legislative intention, that a person who fails the character test on one of the bases set out in s 501(3A) must be excluded from Australia. If the intention was to exclude such a person, Section 501CA(4) would not be there. Further the structure of Section 501CA(4), empowers the Minister without restriction, to revoke the cancellation decision if satisfied that the person meets the character test or for “another reason”.

Axiomatically, the statute specifically contemplates that a person may fail the character test but be permitted to hold a visa to stay on in Australia.

It can be argued that it is implicit in that contemplation that a person who is in fact guilty of the crime for which they were convicted, and on which basis they failed the character test, may be permitted to stay in Australia. And in so doing, the Minister ( or any decision maker including the Tribunal), in light of unrestricted powers conferred by Section 501CA(4), may make a finding that the true facts are different from those underpinning the conviction.

It is not surprising Justice Derrington took the view the Tribunal should not have disallowed fresh attempt at tendering further or new evidence by the applicant, to seek revocation of the decision to cancel his visa.

“… the Tribunal acted on a wrong principle, being that it could not examine the facts upon which the conviction was based and could not receive evidence inconsistent with or which contradicted evidence relied upon by the criminal court when arriving at the conviction and sentence. Refusal to consider the evidence advanced, including that evidence about the circumstances surrounding the offending, could realistically have resulted in a different outcome, had the Tribunal adopted the correct approach to the question. The primary judge erred in failing to so find. The appeal must be allowed…,” Justice Derrington said.

Given this expressly dissenting position adopted by Justice Derrington, it will be foolhardy for the Sri Lankan refugee not to appeal the decision.

Please note: This piece is for general knowledge only and not a substitute for legal advice. If required, people reading this piece, should seek independent, professional legal advice.