Mandatory Visa Cancellation for Imprisonment for Certain Crimes

 
 

The irony of the mandatory cancellation regime for those serving a sentence of at least one year imprisonment is that had it applied on 26 January 1788, most of the members of the first fleet would have been deported immediately!

The big change in migration law in recent time is that anyone who has convicted or has a conviction for a criminal offence where the sentence imposed was at least one year imprisonment and is serving a custodial sentence full time for that offence will have his her visa mandatorily cancelled. There is then a residual power to revoke that cancellation on discretionary grounds. Those involved with offences against children suffer a similar fate.

The then Minister for Immigration and Border Protection[1], Scott Morrison told the House of Representatives on 24 September 2014, when introducing the Migration Amendment (Character and General Visa Cancellation) Act 2014:

Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws. Those who choose to break the law, fail to uphold the standards of behaviour expected by the Australian community or try to intentionally mislead or defraud the Australian government should expect to have that privilege removed.[2]

The Migration Amendment (Character and General Visa Cancellation) Act 2014[3] came into force on 11 December 2014 and applies to all visa held as at that date and all visas granted after that date. The commencement provision states:

Item 22(1)        The amendments made by items 1 to 17 of this Schedule apply in relation to a visa held on or after the commencement of those items (even if the visa was granted before that commencement).

Thus a person serving a 12 year sentence imposed in 2004 would fall foul of this new provision and have his or visa cancelled. It represents a move to purge Australia of those who have serious criminal offences. This is a big change in policy, past policy on both sides was of a relative tolerance of those involved in criminal offences.

The new s 501(3A) was enacted in items 1 to 17 and s 501(3A) states:

(3A) The Minister must cancel a visa that has been granted to a person if:

(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) paragraph (6)(e) (sexually based offences involving a child); 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.

A ‘substantial criminal record’ is defined as a sentence of at least one year imprisonment (s 501(7)(c).  The key is the sentence not the probation period. Thus a sentence of one year imprisonment with release on probation after 3 months is still a ‘substantial criminal record’. Because the person will then be ‘serving a sentence of imprisonment, on a full‑time basis in a custodial institution’ then the visa must be cancelled if the Minister (or the delegate) becomes aware that the person is serving a sentence during that three month period. The writer’s opinion is that if the Minister misses that three month window where the person is ‘serving a sentence of imprisonment, on a full‑time basis in a custodial institution’ then the mandatory cancellation power is dissolved. There is a legal difference between mandatory cancellation and automatic cancellation. Mandatory cancellation will still require that a formal decision be made. However the discretionary cancellation would remain in place for the period outside that ‘custodial’ window. In contrast a sentence of one year which is suspended in total (usually conditional on good behaviour etc) does not lead to actually ‘serving a sentence of imprisonment, on a full‑time basis in a custodial institution’, hence in such case there is no mandatory cancellation power.

Also problematical is what is the legal impact of a person being on parole. The writer’s opinion that at that point the person is not ‘the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution’, hence mandatory visa cancellation cannot occur.  However the contrary argument is that while a person is in custody by a prison authority then the person is serving a sentence. On the other hand a person in immigration detention is not ‘serving a sentence of imprisonment’.

However there is power to revoke a mandatory visa cancellation on discretionary grounds as per the new s 501CA and that is where the focus now shifts as far as acting for an applicant is concerned.

Simply put the test in s 501CA(4) is :

The Minister may revoke the original decision if…. there is another reason why the original decision should be revoked.

Here is the full text of s 501CA :

S 501CA  Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)  As soon as practicable after making the original decision, the Minister must:

(a)  give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b)  invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original 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.

(5)  If the Minister revokes the original decision, the original decision is taken not to have been made.

(6) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and

(b)  ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)      A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:     For notification of decisions under subsection (4) to not revoke, see section 501G.

As is the case throughout the Migration Act, the use of the term ‘Minister’ includes a delegate although the Minister may make decision personally.

Barbara DavidsonMandatory Visa Cancellation for Imprisonment for Certain Crimes