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Visa Cancellation on Character Grounds: More Philosophical Questions

Does it seem to you that the Department is running a small “cottage industry” involving cancelling visas on character grounds?

If you have a look on Austlii, you can certainly get that impression!

Cases before the Tribunal challenging cancellations by delegates of the Minister. Judicial review applications in the Federal Court against decisions made personally by the Minister to cancel, or to refuse to revoke cancellation decisions made by delegates. Appeals to the Full Court from decisions of the Federal Court dismissing judicial review applications against cancellation decisions.

Cancellations, cancellations, cancellations!

And unfortunately for persons who find themselves in the position of having their visas cancelled on character grounds, the deck seems pretty much stacked against them.  The legal grounds for challenging a visa cancellation are really quite narrow, and the rate of success in court is very low.

A prime example is a decision that was handed down by the Full Court just yesterday, 18 May 2017: BSJ16 v Minister for Immigration and Border Protection (2017) FCAFC 78.

One thing that this case illustrates is that having strong family ties to Australia/compassionate circumstances will apparently do little to insulate a visa holder against visa cancellation on character grounds.  In this case, the visa holder was married to an Australian citizen, had a young daughter who is also an Australian citizen, an adult son from a previous marriage, and a stepson from his current marriage.  Those ties did not prevent the Minister from proceeding with the cancellation.  And the obvious negative impacts that the cancellation would have on his family also were not enough.

While there is no detailed discussion of this issue in the Full Court’s decision, the background was that the visa holder had been granted a Protection visa in 1995. Subsequently, he was granted  several Resident Return visas. The fact that visa cancellation might eventuate in the return of the visa holder to his country of original nationality (China) in possible contravention of contravention of Australia’s international human rights obligations under the Refugees Convention also did not prevent the Minister from proceeding with the cancellation.

In that regard, one has to wonder: Is it everappropriate for Australia to cancel the visa of a person who is owed non-refoulement obligations? What do you think? My personal opinion on this subject is that it is not, that the proper course in such cases is to make sure that persons who  commit crimes while in Australia on Protection visas are dealt with appropriately by the criminal justice system and that they be given sentences that are commensurate with the seriousness of their offending.

But not that they sent back to a place where they will be subject to persecution on Convention­-related grounds.  Really!!!!!!

This decision also shows that re-offending, even if the subsequent offence seems less serious than the original offending, can trigger visa cancellation – even when the earlier offending has happened some years ago. 

Here, the visa holder was convicted in 2006 for the offences of “assault occasioning actual bodily harm (for which he was sentenced to 12 months imprisonment that was suspended on his entering a 12 month good behavior bond), two counts of driving while disqualified (which resulted in concurrent terms of 12 months) and making a false statement in a license application, for which he was also sentenced to 12 months).

The later offences, of which the visa holder was convicted in 2014 (8 years after the earlier convictions) were “embezzlement as a clerk or servant of more than $2,000 and less than $5,000” and “stealing property as a clerk or servant”, which resulted in prison sentences of nine months and six months.

Do these latest offences seem serious enough to you to justify visa cancellation?

And if the original offences, for which the visa holder was originally convicted in 2006 were ultimately deemed to be sufficiently serious to justify visa cancellation, and the visa holder’s continued presence in Australia considered to pose an unacceptable risk of harm to the Australian community , then why did the Department/Minister not proceed with visa cancellation at that time?

And is an assault conviction that results only in a suspended sentence subject to a good behaviour bond really of sufficient gravity to warrant visa cancellation?  Driving while disqualified, or making false statements in a license application?  Do these really amount to the basis for the harsh administrative sanction of visa cancellation?

Were any new avenues of challenging a visa cancellation on character grounds revealed in this case?

It was suggested by the visa holder’s legal representatives that in order to sustain a visa cancellation, decision, it is necessary for the minister to find that the potential harm to the Australian community of the visa holder’s reoffending would be so serious as to make the likelihood of reoffending unacceptable.

The Full Court held that the Minister’s visa cancellation powers are not so narrowly circumscribed.

It found that “The Minister is not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the applicant re-offending”, nor is the Minister required “to prescribe any particular characterisation to the quality of the risk”.

Does this holding mean that so long as the risk of harm is anything above non-negligible or nil, that so long as the Minister considers the risk of harm, that a risk of re-offending however low or small can be grounds for visa cancellation?

That if a person has spent a long period of time in the community after completing a period of parole, and then commits an subsequent offence that is non-violent and relatively minor and does not involve a prison sentence of 12 months or more, that the further offence can nonetheless trigger visa cancellation, detention and removal from Australia?

Is such a regime too harsh, or is it “just right” and just?

What do you think?

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  • Sean
    Sean Friday, 19 May 2017

    This is absolutely a great case which summarize the current philosophy that DIBP is adopting. The essence is to 'Ship off the problem to someone else', which in theory Australia absolutely has a sovereignty right to do so. However, it certainly raise moral questions as to whether or not Australia should at least attempt to solve the real problem by using the existing Criminal Justice System. This case would not have provoked much thought if the crimes committed by the visa holder was violent or sexual in nature and heavy sentence (12 months or more) was imposed because of it. But rather, it somehow has a borderline situation where the balance can be tilted either way. I somehow believe the visa holder was 'double-punished', however, Migration Act itself is a double standard weapon which DIBP utilize to decide or play with the fate of migrants :)

  • Sean
    Sean Monday, 22 May 2017

    OK, I now hold a different opinion from this first comment :)

    Actually, On second thought, I believe DIBP did the right thing by deporting the visa holder, even though he previously holds protection visa. People on a visa in Australia should be hold accountable on a much higher standard (than Australians) regarding their conduct, it would be next to impossible to convince DIBP otherwise, when all DIBP was doing is to protect the Australian community by enforcing the Migration Act. Case such as this should be made an example of, which DIBP delivered beautifully.

    Now analyzing from the Visa Holder's side, he committed crimes/offenses against a country (Australia) that was kind and merciful enough to offer him protection from death or serious bodily-harm. But that offer was never unconditional, Australia absolutely has a sovereignty right to at least expect that such a person should follow the Laws of Australia and do not cause harm or risk to the Australian community. I never believed the term ' owe ' is in any way appropriate when describing Australian's responsibility towards Protection Visa Holders. Australia does not owe any protection obligation to anyone, and certainly not to someone who repeatedly committed crimes/offenses against the Australian community.

    I wish I have not been too harsh, I sincerely hope this person will somehow turn his life around after returning to his home country. Hopefully he will never gets harmed in his home country, especially after all these years, any threat to his life and safety existed before has already diminished.

  • Guest
    Richard Monday, 22 May 2017

    I Agree with the 'Second' Opinion of Sean :), Australia has enough problems to worry about at the moment, while we welcome migrants, we should not hesitate when weeding out verifiable threats from the Migrant group :)

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