In the case of Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)  AATA 3063, the person’s visa was cancelled due to a very serious sexual offence. The crux of the case was determining whether the Department has discretion to revoke the decision to cancel his visa. This case revolved around the critical issue of community protection versus an individual’s right to stay in Australia. The findings of this case have significant implications for immigration law.
The case involves a New Zealand citizen who has been living in Australia for 17 years. He was holding a special category visa (temporary visa) and is not an Australian permanent resident nor citizen.
He was convicted of very serious offenses involving sexual intercourse with a 15-year-old child. The incident took place in April 2021, and the court sentenced him to two years and three months in prison. Additionally, s a minor driving offense in 2017 was considered which was unrelated to the sexual offenses.
Given the nature of his offence and that he was serving a term of imprisonment, he had his visa cancelled mandatorily by the Minister under s 501(3A) of the Migration Act 1958. By law, he was then permitted to request for the Minister to revoke this decision on the basis of either:
- he passes the character test; or
- there is another reason why the original decision should be revoked.
The Minister initially made a decision not to revoke the visa cancellation and he had appealed to Tribunal for reconsideration.
The Tribunal took into account various factors in making its decision. It assessed the seriousness of the offenses, the risk to the Australian community, and the nature of his ties to Australia which are all factors within the Ministerial Direction No.99.
The Tribunal emphasized that sexual crimes and violence against children are regarded as very serious by the Australian government and the community which is in line with the guidelines in the Ministerial Direction No.99. While his earlier driving offense was considered minor, the sexual crimes were of great concern due to their impact on a vulnerable child.
The Tribunal also evaluated the risk of his reoffending, considering reports from a forensic psychologist. Despite concerns about his remorse and insight into the wrongdoing, the sentencing judge concluded that the likelihood of reoffending was low and his prospects for rehabilitation were seen as favorable.
Despite these points, the Tribunal found that the impact upon his biological daughter and his three stepchildren should his visa be cancelled to outweigh all other factors. The Tribunal was convinced that the children’s best interests firmly weigh in favour of revocation of the decision to have his visa cancelled.
After considering all the factors, the Tribunal was satisfied that there was “another reason” to revoke the decision to have his visa cancelled, founded upon his strong familial and social ties to Australia and the best interests of his daughter and her siblings.
In conclusion, the case highlights the delicate balance between protecting the Australian community and considering the best interests of an Australian minor child and their family.
This case underscores the complexities of immigration law, where the nature of the offense, potential for rehabilitation, and the individual’s ties to the community all play pivotal roles in determining the outcome. It serves as a valuable precedent in the ever-evolving landscape of Australian immigration law.
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