Facing a character grounds visa cancellation is one of the most formidable challenges in Australian immigration law. When the Department of Home Affairs relies on an extensive criminal history and adverse intelligence to cancel a visa, the consequences for the individual and their family are profound. In this matter, meticulous preparation and comprehensive evidence supported a successful challenge to the cancellation decision.
| Matter Type | Administrative Review Tribunal (ART) migration review |
| The Challenge | Challenging a visa cancellation based on an extensive criminal history and adverse police intelligence. |
| Represented By | Sali Romie, Solicitor |
| Outcome | The ART set aside the Department’s cancellation decision and remitted the matter with a direction not to exercise the discretion to cancel the visa. |
The Challenge
This was an exceptionally complex and challenging matter. The applicant had an extensive criminal history spanning many years. In support of the visa cancellation, the Department of Home Affairs relied upon this history together with substantial intelligence gathered by the New South Wales Police Force. The material before the Tribunal included adverse information and intelligence reports asserting that the applicant posed an ongoing risk to the Australian community.
The Legal Issue: Character Grounds Visa Cancellation
Under the Migration Act 1958, specifically section 501, the Department holds broad character-related refusal and cancellation powers. The ART’s official guidance confirms it can review certain immigration and citizenship decisions, including specific character-related visa cancellations.
In this matter, we did not dispute that our client failed the character test. The central legal issue before the Tribunal was whether, having regard to all the relevant considerations under the applicable Ministerial Direction, the discretion to cancel his visa should nevertheless be exercised.
Our Evidence and Submissions
Led by solicitor Sali Romie, our immigration law team prepared comprehensive written submissions alongside extensive supporting evidence to address every relevant consideration required by the Ministerial Direction.
Our submissions carefully analysed the weight to be given to the applicant’s criminal history, the police intelligence, the protection of the Australian community, and the broader public interest. Simultaneously, we addressed the significant consequences that a cancellation would impose upon the applicant and his family.
In particular, detailed evidence was presented regarding:
- The applicant’s rehabilitation and the specific circumstances surrounding his historical offending;
- His strong and longstanding ties to Australia;
- His extensive family support network and his ongoing role in supporting family members;
- The severe hardship and practical impediments he would face if removed from Australia; and
- Why, notwithstanding the seriousness of the material relied upon by the Department, the discretion to cancel should not be exercised.
The ART Outcome
After considering the relevant material under the applicable Ministerial Direction, the Tribunal determined that the discretion to cancel the applicant’s visa should not be exercised.
The ART set aside the Department’s cancellation decision and remitted the matter with a direction not to exercise the discretion to cancel the visa.
Why It Matters
This matter demonstrates that even where an applicant has an extensive criminal history and is the subject of significant adverse police intelligence, a character grounds visa cancellation is not inevitable. While one cannot imply that rehabilitation or family ties will outweigh community protection in every case, this result highlights that every matter turns on its own unique facts, the quality of the evidence presented, and the proper application of the Ministerial Direction.
Frequently Asked Questions
What is a character grounds visa cancellation?
A character grounds visa cancellation is a decision to cancel a visa under the character-related provisions of section 501 of the Migration Act 1958. The precise statutory basis depends on the individual decision.
Can the Administrative Review Tribunal review character-related visa decisions?
Yes. The ART’s official guidance confirms it has the jurisdiction to review certain character-related visa refusal, cancellation, and non-revocation decisions made by delegates of the Minister.
Does failing the character test mean my visa will definitely be cancelled?
Not necessarily. Where the decision involves a discretion, relevant considerations are assessed under the applicable Ministerial Direction. The result depends on the specific statutory power, facts and evidence.
Speak to Jameson Law
If you have received a Notice of Intention to Consider Cancellation or if your visa has already been cancelled, obtaining objective legal advice at an early stage is critical. Contact the immigration team at Jameson Law today for a confidential consultation regarding your circumstances.
