Dear Minister, who are the members of the Australian Community”?

Conviction for child porn offences -cancelled visa – S501 (3A) – Crimmigration

Craig v Minister for Immigration

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Migration Case Law Updates

Case Analysis: Craig v Minister for Immigration

The genesis of the case is that the applicant was at the time a holder of a transitional permanent visa which was canceled mandatorily in March 2018 under section 501(3A) of the Migration Act. This section gives power to the Minister or through its delegates to cancel someone’s visa if satisfied that the person has not qualified the character test espoused under that section.

The character test is provided for under section 506 of the same Act which requires an applicant of such a visa should not be facing any criminal charges at the time otherwise their visa stands to be canceled or refused if they find themselves in such a situation and if they also fail in giving any other good reason as to why their visa should not be cancelled. Having failed the character test and failing to produce another reason why his visa should not be canceled, the delegate of the Minister cancelled the applicant’s visa who at the time was serving a jail term at Mount Gambie prison.

The judicial review proceedings were challenging the minister’s reasoning of the risk assessment involved in this case. The delegate had looked at the general protection of the Australian community which was pegged on the question of whether there was a likelihood of the applicant reoffending. This is based on the great efforts put in place by the Australian government in ensuring that the Australian Community is free from any form of harm resulting from criminal activity instigated by non-citizens.

Sexual offences involving minor children have particularly been considered to be so gross and serious in Australia and in this case the applicant’s conduct was held to be endangering to the Australian community who was facing four counts of possessing child pornography.  The judge during this appeal was also of the opinion that such sexual offences that the applicant in this case was facing were against vulnerable members of the community and therefore repugnant to the Australian community and what the government stands for.

Moreover, at arriving to its decision, the court took into consideration the fact that the pornography images on the applicant’s devices were within the 12-month period that he was on a good character bond that had been imposed back in 2012. The judge therefore declared that the applicant having offended while he was still on conditional liberty added to the seriousness of his offending.

The court also considered Mr. Craig’s denial of the charges before him. However, the judge did not accept the denial and went ahead to hold that that explanation seemed rather implausible and too convenient and that it was a mere psychological coping mechanism against him having feelings of remorse or shame.

The court in reaching its final determination weighed the other considerations that it could reasonably have used to refuse the applicant’s visa cancellation and the need for protection of the Australian Community from any harm and the latter carrying more weight made the court arrive at dismissing the appeal.

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