S 501 – Serious Criminal Conduct (Case Summary)

Ricardo Bruno Gouveia, the Applicant, is seeking a review of a decision made by a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (the Respondent) not to reverse the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (the visa) as per section 501CA(4) of the Migration Act 1958 (Cth) (the Act).

Gouveia, born in Portugal and a citizen of that country, arrived in Australia at the age of 6 on 28 February 1987. He was sentenced on 20 April 2022, at Fairfield Local Court, to 12 months of full-time imprisonment with a non-parole period of 9 months for the offence of ‘Enter dwelling w/i (steal)-T1’. His sentence, backdated to 30 September 2021, concluded on 29 September 2022, with eligibility for parole on 29 June 2022.

On 16 May 2022, Gouveia was notified of his visa cancellation under s 501(3A) of the Act, based on the 20 April 2022 sentence. He made representations for visa cancellation revocation on 20 May 2022. Despite being invited to comment on his criminal record twice in 2023, the delegate decided not to revoke the cancellation on 30 November 2023.

The Tribunal’s consideration revolves around whether to reverse the initial visa cancellation decision under subsection 501CA(4) of the Act. Subparagraph 501CA(4)(b) permits the Tribunal to revoke the original decision if it is convinced that either the Applicant passes the character test or there is another compelling reason for revocation.

The Applicant does not meet the character test, given the 12-month imprisonment sentence imposed on 20 April 2022, as per s 501(6)(a) of the Act. Thus, the sole issue lies in determining if there is another justification for revoking the mandatory visa cancellation.

Evidence presented by Gouveia and his sister, Elizabete Ibrahim, demonstrates familial ties and support, acknowledging his substance abuse issues and efforts towards rehabilitation. However, his extensive criminal record, characterized by repeated offences, poses significant concern. Despite claims of progress, evidence suggests ongoing drug use, undermining assertions of rehabilitation.

Considering factors like protection of the Australian community, absence of family violence evidence, ties to Australia, and community expectations, the Tribunal finds substantial weight against revocation.

In conclusion, based on the evidence and legal considerations, the Tribunal affirms the reviewable decision not to revoke the mandatory cancellation of Gouveia’s visa, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

Written by Ross Ahmadzai

7 Mar, 2024

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