A visa holder can have his or her (usually his) visa cancelled if he fails the character test, under section 501 of the Migration Act. One way to fail that test is to be sentenced to imprisonment for 12 months or more. The term of imprisonment may be for a single offence, or it can the sum of more than one term.
If a person is held to have failed the test, his visa must be cancelled. It is mandatory. But the cancellation can be revoked, if a minister or her or his delegate (a public servant) decides to do so, or, in some cases, if the Administrative Appeals Commission decides that it should be revoked.
The Home Affairs Department has been taking to cancelling visas, if people have had their visa cancelled and the cancellation has been revoked, if they have been sentenced to a further term of imprisonment, even if the new sentence is less than 12 months. That is, they have added the new term of imprisonment to the earlier ones.
In a recent finding, XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6, 3 February 2022 , the full court of the Federal Court held, on appeal, and by majority (Justices Rares and Yates), that a decision of the above kind
was not legally valid, and accordingly that the applicant, XLRJ, still held a visa, and should not be in detention.
The Minister for Immigration might use another of his “god powers” to cancel the visa anyway, for example that XJLR was on general grounds not of good character. It is also more than likely, if the Coalition should win the forthcoming election, that a bill will be produced to change the Migration Act and validate future decisions like the ones that members of the Home Affairs Department have been taking. For the moment, however, a person whose cancellation has been revoked, starts with a clean slate, and would need to have been penalised to a further 12 months’ imprisonment for his visa to be revoked on the above ground.
But as the Dvokovic case demonstrated, the Minsters for Home Affairs and for Immigration have wide range of powers to cancel visas.
CCL objects strongly to this legislation, and for years has advocated that the whole of the visa cancellation on character grounds of the act should be repealed.
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