Be it ethical or not, the Migration Act grants visa cancellation powers to the Australian court system. Over the years many people, whether it be for criminal offences or otherwise have had their Australian Visas cancelled. Often these are people who have lived in Australia for a long period of time, settled down, raised a family, and done honest work in the country for the majority of their lives. At Irish Bentley our objective is to help those who feel their visa cancellation was unjust and try to help them return to the community they have made their home.
Evidence Migration Act Cancellations Can Be Reversed
The Stretton Case
On February 15, 2016 the Federal Court of Queensland made a decision to reverse a visa cancellation ruling in the case of Minister for Immigration and Border Protection v Stretton (2016) FCAFC 11. While getting a visa cancellation reversed is far from the norm, this example shows that contesting a cancellation can be successful with the right legal representation.
A Look at The Stretton Case
- Mr Stretton moved to Australia at age seven in 1961, but was born in the UK.
- He was convicted of minor offences during his teen years.
- In 1975 he was married and produced four children.
- His visa was cancelled in 2009 due to the offences committed which included:
- Three counts of: ‘Indecent treatment of a child under 12 years of lineal descent’
- Mr Stretton was imprisoned for 2 years
- The reason for his visa being cancelled was due to the seriousness of the offences as well as the potential harm to the Australian community were he to re-offend
Why Was The Visa Cancellation Reversed?
- “Using a sledgehammer to crack a nut” is the analogy that was used in defence of Mr Stretton’s visa cancellation
- There were several reasons why cancelling Mr Stretton’s visa seemed unreasonable such as:
- There was a relatively low risk of reoffending;
- Visa cancellation would mean him being estranged from his entire family who still currently live in Australia; and
- Impediments would ultimately be put in place upon his return to the UK.
- Ultimately the judge decided that the visa cancellation was ‘in excess of what… was necessary for the purpose served’
The Ethics of the Migration Act Cancellations
There is a bit of irony in the fact that Australia was originally founded as a ‘convict colony’ and now we often deport our ‘criminals’, rehabilitated or not, by cancelling their visas. Perhaps it is ingrained in our culture, but is it the right thing to do? If a person has spent the majority of their life in our country, they would inevitably feel like a foreigner in the land of their birth. There’s also the question of a duplicate punishment. If someone commits a crime and serves their time according to Australian law, why should they also be kicked out of the country?
How many times will Australia punish someone for past bad behaviour?
The Maxwell Case
Also occurring this month was a case that touched on a lot of the issues above. This case happened on February 8, 2016 and was known as Maxwell v Minister for Immigration and Border Protection (2016) FCA 47.
A Look at the Maxwell Case
- Mr Maxwell moved from the UK to Australia in 1961 alongside his whole family.
- In 2015 the Department cancelled his his Resident Return Visa.
- Mr Maxwell had a lengthy criminal history during his young adult life spending over 7 years in prison with charges from assault to rape.
- Besides some traffic and drink driving offences he was not convicted of a serious crime since 1995.
The Migration Act Visa Cancellation
- The ‘straw that broke the camel’s back’ was in 2015 Mr Maxwell was returning to Australia and falsely put that he had no prior criminal convictions on his passenger card.
- After all his legal trouble Mr Maxwell was obligated to ‘tell the truth, the whole truth, and nothing but the truth!’ and as a result his visa was cancelled.
- This is all despite the fact that he hadn’t seriously offended in over 20 years and had an extensive network of family, friends, and personal roots in the country.
If you or a loved one has had their Australian Visa cancelled please let us know. Irish Bentley can help try to reverse the cancellation, so please don’t hesitate to communicate with us!