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Mandatory Visa Cancellations based on a Substantial Criminal Record – Australian Migration Agents and Immigration Lawyers Melbourne

XMBQ and the Minister of Immigration Citizenship, Immigrant Services and Multicultural Affairs (Immigration) [2021] AATA 853

This case deals with the revocation of a mandatory visa of the applicant who has served a sentence for a sexual offense involving a child. The applicant requested a review of the decision and the revocation of the visa was revoked by the AAT.

The applicant obtained his permanent visa in 2003. He engaged in various criminal offenses in 2010-2017 which included a sexual offense of public masturbation in front of two women. On 15.12.2017, while the applicant was serving a term of imprisonment, his visa was revoked under section 501 (3a) of the Act. Immigration Law 1958[i].

The applicant appealed the decision to the court, which approved in the first instance the revocation of the compulsory visa. The petitioner then appealed to the Australian Federal Court, ordering that the tribunal reconsider the decision given the risk of harm the petitioner would suffer if he returned to his home country, Somalia, and Australia’s obligations not to go too far.

In examining the cancellation of a mandatory visa that the applicant appealed to, Directive No. 90, drafted by the Minister of Immigration, Citizenship, Immigration Services and Multiculturalism, applies.[ii] Guidelines are permitted under section 499 of the Immigration Law 1958 And allow the Minister to give instructions regarding powers under the law.[iii] Directive No. 90 requires the tribunal to take into account the following considerations:[iv]

  • Protecting the Australian Community
  • Has the conduct constituted domestic violence
  • The interests of minor children in Australia
  • Expectations from the Australian community
  • International non-dismissal commitments
  • Scope of obstacles if removed
  • Impact on victims
  • Links to the Australian Community

[i] Immigration Law 1958, s 501 (3A)

[ii] Minister of Immigration, Citizenship, Immigration Services and Multicultural Affairs, ‘Office Direction No. 90’ Ministry of Interior, (As of April 15, 2021) https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>

[iii] Immigration Law 1958, s 499

[iv] Minister of Immigration, Citizenship, Immigration Services and Multicultural Affairs, ‘Office Direction No. 90’ Ministry of Interior, (As of April 15, 2021) https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-no-90.pdf>

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