Campbell (Migration)

The Administrative Appeals Tribunal considered the case of Mr Campbell, who sought review of a decision to refuse him a Special Category (Temporary) (Class TY) Visa, Subclass 444. The refusal was based on Mr Campbell being considered a "behaviour concern non-citizen" due to a criminal conviction and a sentence of imprisonment for at least one year.

The primary legal issue before the Tribunal was whether Mr Campbell satisfied the requirements of section 32 of the Migration Act 1958 (Cth) for the grant of a Special Category visa. This section requires an applicant not to be a "behaviour concern non-citizen," a term defined to include individuals convicted of a crime and sentenced to imprisonment for at least one year.

The Tribunal accepted the evidence that Mr Campbell was convicted in May 1991 in New Zealand for an offence related to the possession and selling of cannabis, and was sentenced to imprisonment for a period of at least one year. As there was no evidence of any subsequent convictions, and no provision in the Act or Regulations that would override section 32 or waive the "behaviour concern" requirement, the Tribunal concluded that Mr Campbell did not meet the criteria under section 32. Consequently, the delegate's decision to refuse the visa was affirmed.

Despite affirming the decision, the Tribunal acknowledged the considerable hardship Mr Campbell and his family would face if he were unable to remain in Australia. In light of this, and finding that Mr Campbell appeared to meet certain criteria for unique or exceptional circumstances under the Ministerial Intervention guidelines, the Tribunal recommended that the case be brought to the Minister's attention for consideration of intervention under section 351 of the Act.