Case Summary – Section 501 of the Migration Act 1958
In April 2015, our Client received a Notice of Intention to Consider Cancellation of his Resident Return visa. He had migrated to Australia in his late teens and had lived in this country almost 50 years. During this time he had married twice, establishing a large family including children and grandchildren. He had only returned to his home country on two brief occasions, and in every regard considered Australia to be his home. Our Client responded to the Notice making submissions on his own behalf, outlining much of the same.
However, in December 2015, the Minister declared to cancel our Client’s visa under section 501(2) of the Migration Act 1958 (“the Act”). Under this subsection of the Act, the Minister may cancel a person’s visa if:
“… the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes the character test”.
The particular ground on which the Minister found our Client to have failed the character test, dealt with a person having a “substantial criminal record”, meaning that they have been sentenced to a term of imprisonment of 12 months or more.
Our Client’s criminal history comprised of four offences for which he was charged and convicted in 1993. It is worth noting that at this time, he voluntarily handed himself over to authorities, plead guilty at first instance and served a wholly suspended sentence of three years.
Moreover, in the years that followed our Client demonstrated significant remorse and complete rehabilitation in relation to these crimes. He endeavoured to give back to the community, involving himself heavily in charitable works, the Arts and the Church. Our Client was by many accounts a model citizen, with a deep appreciation for the Australian outdoors and culture. Our Client had not reoffended, and after 23 years, posed no conceivable risk of reoffending or harm to the Australian community.
In spite of these factors, our Client was unable to satisfy the Minister that he passed the character test. He was then placed in Immigration Detention, where he had his visa cancelled, was barred from applying for further visas and was informed that he would be removed from Australia. It was at this point that Irish Bentley Lawyers was engaged to act on behalf of our Client and his family.
Our Client’s circumstances were amongst the most difficult of section 501 cases, wherein the cancellation decision is made personally by the Minister. In such instances there is no right of appeal to any merits review body such as the Administrative Appeals Tribunal (AAT). The only remaining avenue is to apply for a judicial review in the Federal Court of Australia. Our firm advanced the matter by preparing, drafting and filing substantial submissions for the case to be heard in this Court.
Ultimately, the matter did not go to hearing. The Court after receiving our submissions made definitive orders quashing the Minister’s decision. This case highlights that the threshold for removal of visa holders from Australia is low.
The team at Irish Bentley Lawyers have extensive experience in Migration Law and have recently won the Acquisition International’s 2015 Global Mobility, Immigration and Logistics award in this area. Due to the work of both the IBL team and his family, our Client was able to be released from detention with costs awarded. Most importantly, he is able remain in Australia.
For professional advice concerning all migration matters, contact the team at Irish Bentley Lawyers today.