Can’t Go Behind the Conviction
TABLE OF CONTENTS
Pathway Advice and Character Issues
Visa Cancellation on character grounds can have permanent consequences
Character issues now spill into many areas of migration law
Mandatory Visa Cancellation for Imprisonment for Certain Crimes
28 Days to Apply to Have the Mandatory Cancellation Revoked
Person Remains in Detention Once a Visa is Cancelled
Merit Review, Mandatory Cancellation and Revocation of Cancellation
What is the Relevance of s 501(3A) to Sentencing Principles
Other Character Cancellation Powers
The Character Test in the Non-Mandatory Cancellation Context
Substantial Criminal Record – Imprisonment
Okay to Exhaust All Remedies
Australian Citizen Children
Offences in Immigration Detention
Involved in a Group Involved in Criminal Conduct
People Smuggling
General Character
Further General Grounds to Fail the Character Test
Sexually Based Offences Involving a Child
War Crimes
ASIO Adverse Assessment or an Interpol Notice
Additional Definitions of Substantial Criminal Record
The Minister’s Personal Power
Administrative Appeals Tribunal Review
Judicial Review of AAT Decisions
Time Limits for AAT Review
Practice Points
Can’t Go Behind the Conviction
Character References
Forensic Psychiatric Report
Those Convicted of Fraud
The Minister’s personal decisions including those in the national interest
Notes from Lorenzo
It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based: Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) [1991] FCA 363; (1991) 30 FCR 578;102 ALR 19 at 581 [22]
Those found guilty of crimes often try to play down the nature of the offence. The key document is the sentencing remarks by the judge or magistrate who imposed the original sentence. Unless there is some extraordinary reason, a person bringing a case to the AAT must not try to present a case which is contrary to the facts necessary to establish the conviction and must not seek to present facts different to how the sentencing judge found them. Having insight into one’s criminal conduct is a key factor in determining whether a person has reformed. Trying to down play what happened is evidence of lack of insight.