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Human Rights Claim as Defense to Visa Cancellation?

In yesterday’s post, we saw, in the discussion of the Full Court’s decision in the Carrascalao case, an illustration of possible avenues to challenge decision-making by the Minister (for example, where the Minister exercises personal powers to cancel a visa on character grounds).

Namely, where it can be shown that the Minister (or another decision-maker) clearly has not had sufficient time to review the background materials relevant to a decision, then it may well be open to challenge or contest that decision on the theory that there was not been “genuine, proper and realistic” consideration of the merits.

Sorry to say, but today we’re back to the “old normal”: another decision of the Federal Court that shows that challenging a visa cancellation decision will most commonly be very difficult, and that attempts to raise creative and novel grounds of fighting visa cancellations will not easily be accepted by the courts.

The situation in today’s case, Poroa v Minister for Immigration and Border Protection (2017) FCA 826 (24 July 2017) was that the visa holder was a citizen of New Zealand who had been in Australia for 22 years, since the age of 19. He had been convicted of the offence of “supplying a prohibited drug in not less than a large commercial quantity” and was sentenced to a term of imprisonment of 12 years, with an 8 year non-parole period.

He was therefore subject to mandatory cancellation of his Special Category visa under section 501(3A) of the Act because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis in a  custodial institution.

His first argument was that in exercising the discretion whether to proceed with the cancellation of a visa, the Minister must “assess the likelihood of future harm in deciding whether the person passes the character test”.

Unfortunately for the visa holder, this argument ran straight in to the brick wall of the Full Court’s decision in Moana v Minister for Immigration and Border Protection

In that case, it was held that while it is mandatory in visa cancellation cases that the Minister consider the “risk of harm”, there is no requirement that the risk of harm be considered in any particular way.

In other words, it was held in Moana that there is no obligation on the Minister to evaluate the likelihood that the visa holder will re-offend or otherwise engage in harmful conduct in the future.  It was held in Moana  that there may be some cases where the past offending or other conduct has been so serious that there is no requirement that the Minister evaluate how likely it is that the person may engage in future conduct that will cause harm.

In Poroa, Judge Perry of the Federal Court held that the principle enunciated in Moana applies both when the cancellation of the visa is a matter of discretion, and when the cancellation is mandatory, and the Minister is then simply then considering whether the mandatory cancellation ought to be revoked.

The second argument that was advanced on behalf of the visa holder was “legally unreasonable” because the Minister had not carried out an analysis of the possible impact of the “non-revocation” of the cancellation on the visa holder’s partner.  It was further suggested that the impact of the non-revocation on the visa holder’s wife was a matter that was a “mandatory relevant consideration” that had to be taken into account by the Minister in deciding whether or not to allow the cancellation to remain in place.

This argument also went “nowhere”!

The Court simply found that there is no basis in the Migration Act  for discovering the existence of an “implied requirement” for the Minister to consider the impact of the non-revocation of a visa cancellation on the applicant’s partner.  Indeed, the Court went so far as to say that a failure by the Minister to consider the impact of a non-revocation on the visa holder himself would not be enough to make the decision legally unreasonable.

All that is needed to insulate a decision from a finding of legal unreasonableness, according to Judge Perry in Poroa, is  that the decision must be within the range of “lawful possible outcomes”, having regard to the “terms, scope and policy of the statutory source” of the visa cancellation power.

Lastly, an argument was framed that the visa cancellation was in breach of Australia’s human rights obligations under the International Covenant on Civil and Political Rights.

It was submitted that the fact that Article 23 of the ICCPR provides that the right of men and women of marriageable age to marry and found a family shall be recognised” creates a “legitimate expectation” that the Minister would take the right to have a family into account as a matter to be considered, and that the failure to consider this right therefore amounted to a denial of procedural fairness.

Judge Perry did accept this argument, as far as it went, namely that the ICCPR does create a legitimate expectation that the right to start a family is something that must be taken into account when the Minister considers whether or not to revoke the cancellation of a visa.

The problem for the visa holder in this case, however, was that the actual record of the materials that had been before the Minister revealed that the Minister had in fact considered the applicant’s right to found a family with his wife, and had considered that his removal back to New Zealand would stand in the way of their pursuing IVF treatment. 

However, the Minister ultimately found that this consideration, of the right of married persons to found a family, was outweighed in this particular case by other considerations.

So, in this case, the “legitimate expectation” that the right to start a family, as recognised  by the ICCPR, be “considered” had the practical consequence in this case that there had been no denial of procedural fairness to the visa holder.

And hence no jurisdictional error on the part of the Minister in deciding not to revoke the visa cancellation.

And hence, the end of another challenge to the visa cancellation powers under the Migration Act!

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

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