Administrative Appeals Tribunal of Australia

  • Simpson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 78 (1 February 2021) – Administrative Appeals Tribunal of Australia
    Another reason to revoke mandatory cancellation decision’ – ‘Application for review of decision not to revoke cancellation of visa’ – ‘Character test’ – ‘Criminal history’ – ‘People affected by substance misuse’ – ‘Uncharged acts

    Proceedings: Application for review of decision not to revoke cancellation of visa.

    Facts: A delegate of the Minister (the respondent) mandatorily cancelled the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. The applicant made written representations to the respondent requesting revocation of the cancellation of the visa. The respondent declined to revoke the cancellation.

    Issues: Under s 501CA(4) of the Act, the original decision may be revoked if –

    1. The applicant passed the character test (subsection (b)(i)).
    2. There is another reason why the decision to cancel the applicant’s visa should be revoked (subsection (b)(ii)).

    Decision and reasoning: Application for review of decision not to revoke cancellation of the applicant’s visa was dismissed.

    Issues 1: The applicant had a “substantial criminal record”. He did not pass the character test defined in s 501(6) of the Act and could not rely on s 501CA(4)(b)(i) as a reason for the mandatory cancellation of the visa to be revoked.

    Issue 2: The Tribunal was required to consider “Primary Considerations” under Direction 79 (as well as “Other Considerations”).

    On Primary Consideration A “Protection of the Australian community from criminal or other serious conduct”, the Tribunal member noted that under the Direction she was “not limited to considering proven offences” but “required to consider the nature and seriousness of the applicant’s ‘conduct to date’.” This included an incident where the applicant damaged his ex-partner’s new partner’s car, grabbed his ex-partner, and threatened her and her new partner with violence. This was “very serious conduct” (at [52]). The applicant had also committed 34 criminal offences and had a lengthy traffic history. There was a moderate risk he would commit further offences. Primary Consideration A weighed heavily against revocation of the cancellation of the Applicant’s visa ([49]-[84]).

  • Hamilton and Secretary, Department of Social Services (Social services second review) [2020] AATA 1918 (26 June 2020) – Administrative Appeals Tribunal of Australia
    Covid-19 pandemic’ – ‘Domestic violence’ – ‘Financial abuse’ – ‘New start allowance’ – ‘Special circumstances’ – ‘Workers compensation

    Case type: Review

    Facts: The female applicant sought review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division, which affirmed the decision of the Department of Human Services rejecting her new start allowance claim because she had a compensation lump sum preclusion period from 2 March 2010 to 21 April 2025. The applicant had received a workers compensation lump sum payment for injuries suffered in a motor vehicle accident. Her evidence was that she suffered severe financial hardship as her abusive male ex-partner had accessed and gambled her savings. She terminated the relationship and had to sell her home due to her financial difficulties, retaining about $400,000. The relationship resumed and he used her ATM card to take money from her bank account threatening to beat her if she did not provide access to her funds. The applicant finally terminated the relationship and said he had taken all the money which she had following the sale of her house which represented all that remained of the settlement sum she had received ([67]). The applicant was unable to obtain continuous employment and was experiencing severe financial hardship ([79]).

    Issue: Whether special circumstances exist.

    Held: The Tribunal set aside the decision and held that the applicant’s circumstances were "special" pursuant to s 1184K, such that much of her compensation payment should be treated as not having been made so as to reduce the preclusion period applicable to her compensation payment so that it ended on 21 May 2020 ([82]). The special circumstances in accordance with s 1184K(1) related to the totality of the applicant’s circumstances, including her financial hardship, her injuries, her financial deprivation following domestic violence and financial abuse ([79]).

    The hearing was conducted via telephone in accordance with the provisions of the Tribunal’s COVID-19 Special Measures Practice Direction - Freedom of Information, General and Veterans’ Appeals Divisions ([29]).