Generally speaking, visa cancellation powers are enacted by s109, s116,s128, s140 of the Migration Act 1958 (The Act). In particular, Cancellation under s.116(1)(e) of the Migration Act 1958 – whether applicant is or may be, or would or might be, a risk to the health and/or to the safety of the Australian community or a segment of the Australian community – assessment of risk in circumstances.
How to ground of cancellation could be established? Whether the power to cancel the visa should be exercised – consideration of the degree of hardship to the applicant and his family, the legal consequences of cancellation and the circumstances in which the ground for cancellation arose. Can the visa be cancelled under s116(1)(e) where criminal misconduct has not yet been established?
Following the state criminal justice certificate issued under the s148 of the Migration Act, the Minister may in his or her absolute discretion issue a Criminal Justice Visa under s159 of the Act. Otherwise, the visa holder will remain in detention pending his or her criminal trial, unless he or she is either granted another visa or the cancellation of his or her visa is set aside by AAT.
The Minister also has discretion to cancel a visa under s501(2) of the Act if the Minister reasonably suspects the visa holder does not pass the character test.
In contrast, s501(3A) of the Act provides that the Minister must cancel a visa if the visa holder has a substantial criminal record or has committed a sexually based offence involving a child. Per s501(7) of the Act, a visa holder will have a ‘substantial criminal record’ if he or she has convicted one or more crimes and sentenced to imprisonment of 12 months or more. If the ground for cancellation is not mandatory, the decision maker or tribunal must proceed to consider whether the power to cancel the visa should be exercised.
I have regard to the Department guidelines set out in PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’.
The guidelines cover such matters as:
· (1) the purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;
· (2) the extent of compliance with visa conditions;
· (3) the degree of hardship that may be caused (financial, psychological, emotional or other hardship);
· (4) the circumstances in which the ground of cancellation arose;
· (5) past and present conduct of the visa holder towards the Department;
· (6) whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;
· (7) whether there would be consequential cancellations under s.140 of the Act;
· (8) whether any international obligations would be breached as a result of the cancellation, and
· (9) any other relevant matters.
