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MWCW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 777

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Date: 6 April 2021
Court/Tribunal: Administrative Appeals Tribunal
Judicial Officer/Tribunal Member: Senior Member B. Pola
Human Rights Act 2019 (Qld) Sections: N/A
Rights Considered: N/A
Other Legislation: Migration Act 1958 (Cth)
Keywords: Criminal Law and Corrective Services

The applicant sought a review of the decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to mandatorily cancel his Visa as he did not pass the character test prescribed in the Migration Act 1958 (Cth). The Human Rights Act 2019 (Qld) was mentioned in a report by Queensland Corrective Services where they said they had considered the applicant’s human rights when determining that he required the level of structured supervision afforded to prisoners managed as high security.

The applicant had a lengthy criminal history in both Australia and New Zealand and was sentenced by the Queensland Magistrates Court in March 2020 to 12 months of imprisonment. This led to the mandatory cancellation of the applicant’s visa by a delegate for the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs: at [2]-[4]. The applicant applied to have the cancellation revoked and the respondent decided not to revoke the mandatory cancellation: [5]-[6]. The applicant subsequently applied to the Administrative Appeals Tribunal for a review of that decision: at [7]. 

The only reference to the Human Rights Act 2019 (Qld) was contained in a report by Queensland Corrective Services, which determined the applicant required ‘the level of structured supervision afforded to prisoners managed as a high security’ due to his high risk of re-offending and substantially harming the community: at [130]. The report stated that proper consideration had been given to the applicant’s human rights, however, no relevant rights were specified: at [130].

In making the decision, the Tribunal considered whether the applicant passed the character test, and whether there was another reason why the decision to cancel the Visa should be revoked: at [13]. The applicant was found to have not passed the character test and the considerations in favour of non-revocation outweighed the considerations in favour of revocation: at [15]-[18], [221]-[223].

The Tribunal affirmed the respondent’s decision not to revoke the mandatory cancellation of the applicant's Visa: at [226].

Visit the Judgement: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/777.html?context=1;query=%22%20hra2019148%22;mask_path=