Australian Visa Cancellation and Children
Introduction
This post is not about cancelling the visas held by non-citizen children! It aims to clarify the specific factors that are relevant when a non-citizen subject to Australian visa cancellation has minor children that live here.
All non-citizens living in Australia are potentially subject to visa cancellation. Permanent visas; provisional visas; temporary visas; and bridging visas can all be cancelled under the strict ‘section 501’ character provisions. The cancellation process can be discretionary, or it can be automatically made through the operation of mandatory visa cancellation provisions. The Minister acting personally can cancel a visa, or a decision-maker working in the Department of Home Affairs can cancel it.
In this article, we’ll focus on the mandatory visa cancellations, but much of the content applies also to discretionary visa cancellations on character grounds. Mandatory visa cancellation only relates to ‘character’ grounds and never to ‘general’ grounds. Mandatory visa cancellation will not apply when someone has breached conditions that have been imposed upon their visa, for example. A person that overstays their visa, either inadvertently or intentionally, will not experience mandatory visa cancellation processes either – they have no visa that could be cancelled.
In this article we review mandatory visa cancellation processes and in particular, factors that a decision-maker must consider when assessing whether the visa cancellation should be revoked or not. We focus on the eight factors that relate to the relationship between the former visa-holder and children living in Australia that are under 18.
The child does not need to be an Australian citizen. The best interests of Australian permanent resident children and New Zealand citizen children are assessed equally.
Mandatory visa cancellation in Australia
We begin by summarising how a non-citizen in Australia can become subject to mandatory visa cancellation. Two elements must both be satisfied.
First, the cancellation will only be triggered if the non-citizen does not pass the ‘character test’ because they have a ‘substantial criminal record’. They need to have been sentenced to a term of imprisonment for 12 months or more. The legislation also provides that a life sentence or a death sentence will meet the requirements, but only 12 months is sufficient to meet this limb and that is obviously a shorter period than being sentenced to life or to death. The death penalty cannot be imposed in Australia. A person convicted for engaging in sexually based offences involving a child also will meet this limb, even if the sentence is under 12 months.
Second, the non-citizen must actually be in prison. Paragraph 501(3A)(b) of the Migration Act 1958 (the ‘Act’) provides the requirement that ‘the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory’. This second element is important. A non-citizen that receives a fully suspended sentence could suddenly lose their visa through mandatory visa cancellation provisions if they commit an offence while in the community and find themselves in prison for a lesser offence.
Children need their parent(s)
Some might assume that a non-citizen parent of a child under 18 would almost automatically be able to get their visa back because that would be in the best interests of the child. Most of us agree that children need love and support (both emotional and financial) for their well-being, and they get that from their parents and care-givers. Australia has signed international agreements that recognise that the best interests of children are paramount. The United Nations Convention on the Rights of the Child is one of the international agreements that comes to mind.
It isn’t that simple. Just because a non-citizen has a child (or children) under 18 living in Australia does not necessarily mean that they will be able to get their visa back. Below, we’ll explain the factors that are relevant and that must be considered by a decision-maker.
Ministerial Direction 90
Decision-makers working for the relevant section in the Department of Home Affairs that assess whether a non-citizen subject to mandatory visa cancellation provisions should get their visa back must follow Ministerial Direction 90 (the ‘Direction’). That document sets out the factors that weigh in the decision-making process. Factors that weigh in favour of not giving the visa back are weighed against the countervailing factors for reinstating it.
The factors are segregated into two groups: Primary Considerations and Other Considerations. Primary Considerations are generally given more weight. Three of the four Primary Considerations operate against the (former) visa-holder. The Australian community should be protected from those that engage in criminal or other serious conduct. The government takes a hard line against those that perpetrate family violence. The expectations of the Australian community are also relevant. Australians generally expect non-citizens in Australia to go about their lives without committing serious criminal offences. Each of these three Primary Considerations carry considerable weight and must be overcome before the decision-maker will give a person their visa back.
The best interests of minor children in Australia are the only Primary Consideration that can help a non-citizen to regain their visa. The Direction specifies which factors are relevant in assessing how this countervailing Primary Consideration should be weighed.
Decision-makers must determine whether cancellation is in the best interests of a child affected by the decision. It only applies if the child is under 18, and that would be under 18 at the time that a decision is expected to be made. If there are two or more children, the interests of each relevant child needs to be considered independently to the extent that their interests differ.
Eight Factors
Nature and duration of the relationship
The Direction instructs the decision-maker to consider whether the relationship between the former visa-holder and the child is non-parental. Less weight would be given to a relationship between a non-citizen and a niece or nephew or a family friend, for example, than if they are a parent.
If there is no existing relationship between them, or if there have been long periods of absence, or if there has been limited meaningful contact, then that reality would be reflected in the weighting.
The existence of Court orders that restrict contact will also be relevant.
Positive parental role in the future
The Direction does not only consider the past. It also takes into account anticipations about the future. This factor requires the decision-maker to take into account the extent to which the non-citizen is likely to play a positive parental role in the future.
The current age of the child is relevant. The length of time until that child becomes 18 is going to be reflected in the weight of this part of the assessment. The positive role with a child that is 17 will be given less weight than if that child that is an infant.
Court orders in relation to parental access and care arrangements is also relevant.
Non-citizen’s conduct
The impact of the non-citizen’s prior conduct, and any likely future conduct, is to be kept in mind. The decision-maker will need to assess whether the prior conduct has, or future conduct will have, a negative impact upon the child.
Perhaps surprisingly, this particular factor does not specify that past or future positive impact upon the child has relevance.
Effect that separation would have upon the child
The impact of separation upon the non-citizen isn’t a relevant consideration of this factor. That impact is considered elsewhere in the Direction. The focus here is upon the harm that would be experienced by the child.
The Direction states that the ability to maintain contact despite separation must be taken into account. The ability of the child to leave Australia permanently with their parent would completely mitigate the impact of separation (there wouldn’t be any). Video conferencing software and social media applications help reduce the impact of separation if the parent and child live in different countries.
Modern technologies enable families to maintain communication and build bonds regardless of physical distances. The strength of video conferencing and social media has revolutionised the ability of people living far from each other to form friendships and lasting relationships. Many Australians these days fall in love with people that they have only met electronically through dating sites, for example. This factor acknowledges this reality, and the ability of the child and non-citizen to maintain contact in other ways.
Whether the children are able to periodically visit the non-citizen in the foreign country would also be taken into account.
Strong advocacy aims to reduce the ability of the decision-maker to discount the weight of modern technologies to keep in touch. Children require tactile, physical contact with their parents and caretakers. They need a hug when they are upset, and someone that loves them to bandage their scrapes. Modern technology is wonderful, but it cannot fully replace the shared experiences and lifelong memories created of playing backyard cricket; swimming together in the pool; learning how to ride a bike; spending time together in the surf; or engaging in any other shared family physical activity.
Others to fulfill parental role
If there are others involved in the parental role, that would be relevant to the consideration of this factor.
This factor doesn’t directly take into account that the child might have a stronger bond with the non-citizen than with other parents or caregivers. If that reality is relevant, then the decision-maker’s attention should be drawn to it. A step-parent might have an incredibly strong bond with the child, but it isn’t always so.
Known views of the child
Children are able to express their views about their parent’s visa cancellation upon them. They can write letters to the decision-makers. Their views can be implied by reviewing letters or cards or other communications the children have had with their parent.
The Direction stipulates that the views of the child are to be given due weight in accordance with the age and maturity of the child. There are no further instructions on what exactly this means. Should the views of a young child with only 4 or 5 years of education (with corresponding level of literacy) carry less weight than the views of an older sibling with greater maturity and more education, and a higher level of literacy? If so, why should the views of one child carry less weight than the views of another child because of their age and maturity?
The Decision Record of a Revocation Request that has failed should closely examine how the decision-maker has assessed this factor.
Family violence
One of the four Primary Considerations noted above relates to family violence. It is at play when there is evidence of a non-citizen being convicted of an offence (or have had charges proven) that they have engaged in family violence. This factor is also triggered if there is evidence from an authoritative, independent information source that they have done so.
Family violence is considered again under this Primary Consideration but differs from the above as the focus is the impact of the family violence upon the child. If there is evidence that the child has been subject to or exposed to family violence, or if they have been abused or neglected by the non-citizen, this factor will weigh heavily against the non-citizen adult trying to stay in Australia. The family violence could be physical, sexual, or mental, according to the Direction.
This factor is broadly worded. It captures not only past conduct but also considers whether the child would be at risk in the future. The family violence does not necessarily require physical harm directly upon the child. Exposure to family violence will be sufficient to given weight to this factor.
Physical or emotional trauma
Evidence that a child has experienced or suffered from physical or emotional trauma that has arisen because of the non-citizen’s conduct is the last of the eight factors that are listed under this Primary Consideration.
Most children who have temporarily lost their access to a parent because of imprisonment will experience at least some emotional trauma. It would be hard for the child to tell their friends at school that their Mum or Dad is in prison. It would be hard for them to be at home without the love and support of their parent. The emotional trauma experienced by a child when their parent is in a correctional centre is palpable. The trauma they would experience if their parent lost their right to remain in Australia would be even greater.
The parent’s previous conduct directly relates to their incarceration, so nearly every non-citizen parent that has experienced mandatory visa cancellation will likely cause at least some emotional trauma to their child.
If the non-citizen has engaged in other conduct causing physical or emotional trauma to their child, then this factor would weight against the wrongdoer. It makes it more difficult for them to get their visa back.
Children and Direction 90
We can see from the above eight factors that the mere fact that a non-citizen has children under 18 in Australia that would be impacted by a visa cancellation does not necessarily mean that a former visa-holder will get their visa back. The delegate will need to examine the relationship and the eight factors identified above.
The age of the child and their views have relevance. The quality and quantity of the contact, and whether there are others that fulfill a parental role, is taken into account.
They will look at the conduct of the non-citizen to assess whether they have engaged in family violence impacting upon the child, and whether their conduct has caused physical or emotional trauma.
Addressing each of these factors and providing supporting evidence, including expert evidence, can help a delegate to form the view that the negative impact upon a child in Australia will be so profound that this Primary Consideration must be given significant countervailing weight, potentially being sufficient to outweigh the reasons for not giving the visa back.
Why choose Potts Lawyers to advise you
Potts Lawyers Immigration Law team assist many clients with complex immigration matters, including mandatory visa cancellation revocation requests.
Time frames for making a revocation request are tight and cannot be extended. After the initial revocation request has been made, a detailed response attaching appropriate evidence is required for a successful outcome.
Just the mere fact of having children living in Australia is not going to be adequate to persuade a decision-maker to give a visa back.
Our Immigration Lawyers Can Help
The processes and laws are complex. If you (or someone you love) want to maximise the chances of having a successful outcome, contact our Immigration Lawyers Craig DoRozario or Tom Foran.
We’ll provide a no-obligation initial consultation at no charge. We look forward to hearing from you.