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Full Court Case Highlights Strategy for Challenging Visa Cancellations and Other Decisions!

Does “haste make waste”?

That’s one of the most famous sayings of Benjamin Franklin (one of the leading intellectuals of colonial America!).

A recent decision of the Full Court, Carrascalao v Minister for Immigration and Border Protection (2017) FCAFC 107 (24 July 2017) gives an answer to this question, at least in the context of decisions made personally by the Minister to cancel visas on character grounds.

And the answer suggested by the Full Court’s decision is that, yes indeed, haste does make waste! What good ol’ Ben Franklin said more than 200 years ago is still just as true today.

And most important of all, this decision shines a light on a potentially fruitful strategy for challenging not only visa cancellations on character grounds (always an uphill fight!) , but also any other decisions involving the personal exercise of the Minister’s powers, and potentially also decisions made by delegates of the Minister and by the Tribunal.

All of that in one decision? Yep! Keep reading!!

This was the background:

The Carrascalao case actually involved challenges to the cancellation of two people’s visas, Mr Carrascalao and a second visa holder , a Mr Taulahi.

Both of these men were longtime residents of Australia.

Mr Taulahi is a citizen of Tonga who originally arrived in Australia in 1988 at the age of 12. He has lived in Australia for approximately 25 years, and had 2 daughters who were both Australian citizens. He and his wife operated an earthmoving business which had 20 employees.

Mr Taulahi held a Subclass 801 Partner visa.

His visa was cancelled on the basis that the Minister had a “reasonable suspicion” that he did not pass the character test dues to his alleged association with an “outlaw motorcycle gang” (notably, not because he had a “substantial criminal record”.

The background of Mr Carrascalao was that he was born in East Timor, and is therefore a Portuguese citizen.  He arrived in Australia at the age of 7, in 1975, and lived in Australia continuously for 41 years. He also had 2 children who are Australian citizens.

Mr Carrascalao’s visa was cancelled, in part, based on a criminal conviction that was recorded against him in 2007 for common assault, an offence for which he received a suspended sentence of imprisonment of 12 months.

The cancellation  decision was also based on his alleged association with a different outlaw motorcycle gang – even though he had declared that he had disassociated himself from that club and he claimed that he was not aware of any of the club’s alleged  criminal activities.

Here are the facts that are immediately relevant to the Full Court’s decision”

On 14 December 2016, the Full Court had found that the original visa cancellations were affected by jurisdictional error.  Accordingly, the Full Court ordered that the cancellation decisions be set aside, and that Mr Carrascalao and Mr Taulahi be released from immigration detention immediately.

The Full Court’s decision setting aside the visa cancellations was handed down at 4:15 p.m. on 14 December 2016.

Within a few hours, the Minister made “fresh” decisions to cancel the visas again – in the case of Mr Taulahi, at 8:18 p.m., and in the case of Mr Carrascalao, only a few minutes later, at 8:25 p.m.

So what were the successful grounds of challenge to the second round of visa cancellations?

It was argued on behalf of the visa holders that the Minister had failed to give “proper, genuine and realistic” consideration to the merits of their cases.

The Full Court held that the requirement to give “genuine, proper and realistic” consideration means that the Minister must engage in an “active intellectual process” in determining whether to cancel a visa on character grounds.

Determining whether the Minister (or another “decision-maker”) engaged in an active intellectual process is an issue that is evaluated on a “case-by-case” basis, and is something that depends in part on the “nature and volume of the material placed before the Minister to assist his decision-making”.

Here, a substantial volume of material was placed before the Minister in each case, 330 pages plus the Full Court’s 65 page decision setting aside the original cancellation in Mr Taulahi’s case, and 370 pages of materials relating to Mr Carrascalao. These materials included, in relation to each visa holder, a draft statement of reasons for the cancellation decisions; a Departmental submission concerning whether the visas should be cancelled; and detailed attachments.

This material was not forwarded to the Minister’s office until 7:37 p.m. in the case of Mr Carrascalao, and not until 7:43 p.m. in the case of Mr Taulahi. 

So the total package of materials relating to the proposed cancellations, more than 700 pages worth, was received in the Minister’s office less than an hour before the second cancellations decisions were made.  And again, there was an interval of only 7 minutes between the time that the Minister “signed off” on the second cancellation of Mr Taulahi’s visa, and the time that the minister had approved the second cancellation of Mr Carrascalao’s visa.

In these circumstances, the Full Court found that the Minister “did not have sufficient time to engage in the active intellectual process required by law before deciding to cancel the two visas”.

It is evident from reading this decision that what occurred was that the Department became aware that the Full Court had set aside the original visa cancellations, and that in an effort to prevent the visa holders from being released from immigration detention back into the community, it rushed to get 

materials to the Minister’s office in support of the fresh cancellations.

Reading between the lines, it is also evident that the Minister could not possibly have reviewed the more than 700 pages of materials relating to the proposed cancellations.  Speculating, it seems most likely that the Minister may have only read the Departmental recommendation that the visas be cancelled again.

The moral here is that when it appears from the surrounding circumstances that the decision-maker, whether it be the Minister or a delegate of the Department or a Tribunal member – could not possibly have read and properly evaluated  the material relevant to the decision, then that is a strong indication that the decision may be vulnerable to challenge!

So, relevant to this case is another “antique” express: “a stitch in time saves nine”! 

In other words, if the record had revealed that the Minister had had adequate time to review carefully and consider the Department’s recommendations that the visas be cancelled again, perhaps the second cancellations would  not have been overturned by the Full Court!

 Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.

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  • Guest
    Georgie Tuesday, 05 September 2017

    Excellent comments.
    We are in somewhat the same situation with regard to my nephews cancellation of his visa.
    The Hon Peter Dutton has taken away human and civil rights under this s501/s503
    I thought this country was meant to be a Democracy its become morelike a dictatorship under this man.
    How can one man have all this power.!
    Furthermore Australia does not have a constitutional or legislative "Bill of Rights" even a country like Bangladesh has one of those.
    Whilst I agree with protecting our borders, just stop deceiving the Australian people Peter Dutton for political gain!!
    Peter Dutton is making a mockery of the Australian Justice system he can even overide the courts decisions
    .

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