AAT (MIGRATION DIVISION) APPEAL IS SUCCESSFUL IN A VISA CANCELLATION MATTER UNDER S.116

We have had recently had a great success at the Administrative Appeals Tribunal: Migration Division, for one of our clients. Terry Fisher and Liam Burrow, of Counsel, successfully appealed a decision, made by a delegate of the Minister for Immigration, to cancel our client’s visa under Section 116 of the Migration Act 1958, and who had been detained arbitrarily in immigration detention.

Our client had been charged with a criminal offence and was granted bail, however, a delegate of the Department of Immigration and Border Protection (DIBP) cancelled his Subclass 444 (Special Category) visa, under s. 116 of the Migration Act 1958. Despite the grant of bail he was taken into immigration detention. Under this section, the grounds for visa cancellation is that the person poses a risk to the safety of a member of the Australian Community (et al).

The mere fact that our client had been granted bail implied that he does not pose such a risk. His bail application was carefully deliberated by a Queensland Supreme Court. There were mitigating circumstances in relation to the criminal charges. The Tribunal accepted, on the basis of our submissions, that it was not an appropriate case to cancel his visa.

The interesting thing in cases where a person is granted bail, and subsequently has their visa cancelled under s. 116, is the contradiction that arises. The implication of such a cancellation is an undermining of a Queensland Supreme Court decision, to grant bail. Such inconsistency is concerning, and raises questions as to the power held by the Minister for Immigration, and his delegates.

In all situations where cancellation under s.116 is considered, there is a very low threshold for the Minister to find that there is a risk to the safety of a member of the Australian Community and it is essential that a person at risk of visa cancellation places all relevant information before the Minister before a cancellation decision is made and, if necessary, on a review.

Anyone who finds themselves, or their loved ones, in a similar situation should always seek advice immediately from a registered migration agent  as to their options. Visa cancellation decisions can be appealed, and it is possible to have success. Often there are minimal and strict time limitations for the opportunity to appeal a decision, so it is crucial to act quickly, upon notification of the cancellation. Contact Terry Fisher, solicitor and registered migration agent, for a confidential conversation on (07) 3210 0888, should you need assistance with any visa cancellation matters.