SML Case Review: the (belated) Christmas cheer edition

We received some great news at the end of 2017, with two of our clients receiving positive decisions in the Administrative Appeals Tribunal, allowing them to return home to their families in time for Christmas.

One matter was an application to the AAT’s General Division for review of a decision not to revoke a mandatory cancellation under section 501, while the other was an application to the AAT’s Migration and Refugee Division for review of a cancellation under s 116(1)(e) of the Migration Act 1958.

The 501 Case

Our client was a young man who has lived in Australia for over 10 years. While he had been in a relationship with an Australian citizen for some time, he had no minor children living in Australia (or anywhere). He was convicted of causing grievous bodily harm sentenced to a term of imprisonment of over 12 months.

While serving his term of imprisonment our client’s visa was automatically cancelled under s 501(3A) of the Migration Act 1958. Our client requested that the automatic visa cancellation be revoked, but the Minister’s Delegate determined not to revoke the cancellation of the visa.

Our firm applied to the Administrative Appeals Tribunal for review of the Delegate’s decision. We obtained additional evidence in support of the application for review, provided extensive written submissions and appeared at the hearing of the application before the AAT.

On review, the AAT set aside the Delegate’s decision and substituted a decision that the mandatory visa cancellation be revoked, primarily on the basis that the additional evidence available to the Tribunal at the time of the hearing satisfied the Tribunal that our client’s risk of reoffending was low. As a result, our client was able to return home to spend Christmas with his family after spending a lengthy amount of time separated from them while held in immigration detention.

This case highlights a number of important issues for requests for revocation of automatic cancellations under s 501(3A) and subsequent applications for review to the AAT.

First, while the best interests of minor children in Australia is a primary consideration usually weighing heavily in favour of setting aside a cancellation decision, the absence of minor children in Australia does not mean that a request for revocation (or application for review) will not be successful.

Secondly, it is important to make every effort to obtain all available evidence in support of a request for revocation or application for review, especially evidence going to the likelihood of future offending. The Tribunal may be more likely to set aside a decision under review if it has access to new evidence that wasn’t available to the Delegate determining the request for revocation.  

Thirdly, the Tribunal in this case interpreted paragraph 6.3(4) of Ministerial Direction 65 (which prescribes that certain conduct is so serious that despite a low risk of reoffending and strong countervailing factors an automatic cancellation should not be revoked) as intended to capture offences at the extreme end of the scale of serious offending, such as murder and predatory sexual assault.

The 116 Case

Our client was a middle-aged man who had lived in Australia for over twenty years since he arrived when he was 8 years old. In fact, his mother was an Australian citizen and had his birth been registered with the Australian Consulate in his country of birth our client would have been conferred Australian citizenship at birth (unfortunately, his mother approached the Consulate but could not afford the registration fee payable at the time).

Our client had some difficulties at school and as a youth, and had a history of intermittent offending (including some violent offences) and drug dependency over the course of his life. Despite these problems, our client had maintained his full time job with his employer for over a decade and was raising his young sons with his long-term partner.

Our client’s drug use caused problems with his partner and he was charged with multiple contraventions of domestic violence orders over a number of years and, additionally, the financial hardship caused by our client’s drug dependency led him to commit a number of property offences in an effort to try and make up for the financial shortfall.

Our client was sentenced to a term of imprisonment of less than 12 months. Our client’s visa was not automatically cancelled under s 501(3A), but on the day he was expecting to be released from prison (and be reunited with his family) he was taken by the Department of Immigration and Border Protection and his visa was cancelled under s 116(1)(e) of the Migration Act 1958.

We filed an application on behalf of our client, prepared and lodged extensive written submissions with supporting evidence in support of his application and appeared before the Tribunal at the hearing of the matter. 

Ultimately, the Tribunal determined that the reasons for not cancelling our client’s visa outweighed the reasons for cancellation and set aside the decision. The Tribunal placed emphasis on the Applicant’s history of voluntarily seeking out and participating in various form of rehabilitation in coming to its decision.

As a result, our client was able to return home to his family, including his young children, for Christmas.

This case highlights many important factors in relation to reviews of cancellation decisions under s 116.

First, a lengthy criminal record does not necessarily mean that an application for review will be unsuccessful.

Secondly, it is important to obtain and provide evidence to the Tribunal in relation to not just the existence of parental (or parent-like) relationships with minor children in Australia, but also evidence detailing the nature and quality of those relationships.

Thirdly, evidence which indicates that the former visa-holder is likely to actively (and successfully) engage (or re-engage) with rehabilitation and treatment in the future may be an issue of primary importance to the Tribunal when making its decision.


Visa cancellation matters are rarely straightforward and no two matters are identical.

While the applicants in the above two cases were successful, that does not mean that every matter will have a successful outcome, even if they share similarities with the above cases.

If you or someone you know is facing visa cancellation or has had their visa cancelled, it is vitally important that they receive legal advice from a firm experienced in visa cancellation matters as quickly as possible.

Contact us now to have a free preliminary discussion with Jennifer Samuta or Joel McComber.