A Zambian man will be allowed to stay in Australia after a second bid to have him deported was denied by the High Court.
Likumbo Makasa entered Australia on a student visa in 2001 before being granted permanent residence in 2004
Makasa, a father who is now in his thirties, was first threatened with deportation after being convicted of three counts of having sexual intercourse with a person aged between 14 and 16 in 2006 when he was aged 22.
But immigration authorities’ bid to cancel Makasa’s visa failed on appeal when the Administrative Appeals Tribunal (AAT) in 2013 ruled it would not be in his children’s best interests to have him deported.
Four years later, Makasa was back before a NSW court in 2017 on charges including drink driving.
Makasa was convicted of breaching his reporting obligations by failing to disclose he downloaded a social media app to communicate with his daughter and was fined $300.
He was also fined $1200 for drink driving and disqualified from driving for 12 months.
Immigration authorities threatened to cancel his permanent residence visa a second time, arguing that Makasa failed the character test because of the 2009 sentence and the additional 2017 convictions.
The High Court found that while the immigration minister can re-exercise the power to cancel the visa if “subsequent events or further information provide a different factual basis”, the original order to allow Makasa to stay in Australia was final.
The decision of a delegate of the minister or AAT not to cancel a visa “on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final,” the court said in reasons published on Wednesday.
“Neither the Minister nor the delegate can rely on subsequent events or further information simply to re-exercise the discretion to cancel the visa at the second stage of the decision-making process.”
The Department of Home Affairs has been contacted for comment.