24 Sep What factors does the AAT consider to determine if someone is of a good character?
In this particular case, the AAT affirmed a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) not to revoke the mandatory cancellation of the applicant’s spouse visa. He was found to not be of good character.
By way of background, the applicant’s visa was cancelled on character grounds because he had a substantial criminal record and was serving a sentence of imprisonment. This was a mandatory cancellation (under s501) by the Department after the applicant was sentenced to 15 years in prison for attempting to possess a commercial quantity of methamphetamine.
When a person has requested revocation of the cancellation of the visa and that request has been refused by the Department, they can seek a merits review in the AAT of the decision.
The AAT is required to consider the matters set out in Ministerial Direction no. 79 (the Ministerial Direction) which include protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community (primary considerations). The Tribunal must also consider other factors, such as our international non-refoulement obligation and the strength, nature and length of a person’s ties to Australia (other considerations).
The applicant migrated to Australia from Nigeria in 2007 as a 30-year-old. He was arrested three years later and served the nine-year non-parole period of his sentence before entering immigration detention in late 2019.
In deciding whether to revoke the decision, the AAT found the very serious nature of the applicant’s offence, along with the harm methamphetamine causes in the Australian community weighed heavily against him. The Tribunal considered the impact his removal from Australia would have on his 13-year-old daughter and his wife as they would be indefinitely separated from him, and the difficulties he could face re-settling in Nigeria. However, these matters were not enough to justify revoking the cancellation of his visa.
Cancellation cases based on character grounds are notoriously difficult to navigate. There threshold set by the AAT requires the applicant to prove that there is little or no chance of the applicant repeating the offence.
If you have any questions in relation to character related offences, please email firstname.lastname@example.org
Full decision can be found here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/1467.html?context=1;query=bhvn;mask_path=au/cases/cth/AATA