AAT Migration Option

Mr Thali Weerasinghe is a Sri Lankan citizen who recently had his permanent resident visa cancelled by the Minister for Home Affairs under section 501 of the Migration Act. Mr Weerasinghe fails the character test under section 501(6) of the Migration Act. The Department noted this was due to his last burglary conviction, which saw him receive a custodial sentence over the 12 month legislative threshold. Mr Weerasinghe has long established roots in the community in Melbourne’s south east. He also has a son with disability who he feels will be negatively affected by his deportation. In cancelling his visa, the Department has stressed a pattern of increasing seriousness in Mr Weerasinghe’s offending. • On 11 June 2016, the Applicant was convicted of one count of drug possession. He was fined and made subject to an adjourned undertaking. • On 14 December 2018, the Applicant was convicted of one count of drug driving. He was again fined and received a disqualification from driving. He received a community treatment order. • In December 2019 the applicant was found to be in possession of a drug of dependence; was found guilty of burglary and failure to obey policy direction. This led to sentence of 22 months, with 8 months suspended. Ultimately the Minister’s letter cancelling Mr Weerasinghe’s visa stated, inter alia: “I find that protection of the Australian community weighs in favour of cancelling you visa, given the nature and seriousness of the conduct and the potential risk to the Australian community. I note your family are relevant to this decision, however, I do not think this weighs sufficiently in favour given the broad support network available to them. Further, I find that the Australian community would expect that this visa application would be refused in the circumstances.” Mr Weerasinghe has told you that he accepts that he likely fails the character test under the legislation – especially given the standard of reasonable suspicion under section 501(6). He asks you to focus his appeal to the Administrative Appeals Tribunal on the discretionary ground that even if he fails the character test, the discretion to cancel his visa application should not be exercised. This discretion is regulated by Ministerial Direction No 90. Based on these instructions, write a 1,100 word submission to the Administrative Appeals Tribunal arguing that Mr Weerasinghe’s visa should not be cancelled.