Are Australia's migration laws overly strict and punitive when it comes to visa cancellations?
Do they run roughshod over our expectations of procedural fairness, natural justice and the presumption of innocence?
I will share with you the story of a case that I recently handled in the Federal Circuit Court.
You tell me what you think – please use the comments section!
This was the story:
The client was the holder of a Bridging Visa A, as a consequence of his having held a 457 visa, and then having applied for a Subclass 186 visa through the temporary residence transition stream. His de facto partner also held a Bridging Visa A as a member of his family unit, by virtue of the application for the substantive visa.
Before the application for the Subclass 186 visa was determined, the client was arrested by the NSW Police, and charged with a drug trafficking offence. It was alleged that he had been found in possession of a commercial quantity of Ice – about 1 kilogram – in his backpack.
The Department proceeded to cancel his visa under section 116(1)(e).
This section vests the Minister with power to cancel a visa if he is satisfied that the presence of the visa holder in Australia “is or may be, or would or might be, a risk to the health, safety or good order of the Australian community of a segment of the Australian community or the health or safety of an individual or individuals”.
The wording of this section of the Act establishes a very low threshold for “enlivening” the visa cancellation power.
As Justice Smith of the Federal Circuit Court said in the case of Gong v Minister for Immigration and Border Protection & Anor:
“…..there does not have to be……..any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. “
“”In this case, that possibility was supported by the laying of the charges”.
The issue in my case was whether the mere fact that the visa holder had been charged with an offence was in and of itself sufficient to enliven the visa cancellation power.
There was no other evidence in the record, either before the Department or the Tribunal: no evidence of any kind to support the proposition that the client had in fact engaged in any of the conduct giving rise to the police charge: no admissions of such conduct by the visa holder, no reference to any material in the police facts, nothing at all beyond the bare fact that the client had been charged with the offence.
It was my submission to the Federal Circuit Court that even if the threshold under section 116(1)(e) may be considered to be “very low”, the threshold is not so low that a visa can be canceled without anything in the record to prove that the applicant may have engaged in the activity giving rise OT the offence.
Mind you, I was not submitting to the Court that the Tribunal must engage in the exercise of determining whether a visa holder is innocent or guilty of the offence (which is of course the province of the criminal courts) – my submission was only that the fact that a visa holder has been charged with an offence is not in and of itself sufficient to enliven the cancellation power under section 116(1)(e).
My submission was that a police charge is not “evidence”, and that the charge in law really amounts to no more than an untested and unproven allegation of criminal conduct on the part of the defendant.
Indeed, in the Gong case, Justice Smith had held that the Tribunal had committed jurisdictional error by inferring from the fact that the police had charged a visa holder with an offence that there was a reasonable basis for the charge. Justice Smith held in Gong that the Tribunal's finding that there was a reasonable basis for the police charge was one that was not supported by evidence. Therefore, in Gong, Justice Smith concluded that the Tribunal had fallen into jurisdictional error, and quashed the Tribunal decision that had affirmed the cancellation of the visa.
However, in my recent case, the FCC held that the mere fact of the charge, even without any evidence that the visa holder has actually engaged in any activity prohibited by the offence provisions, is enough, by itself, to enable the Minister (or his delegates or the Tribunal) to be satisfied of the “jurisdictional fact” that there is a possibility that the continued presence of the visa holder in Australia might pose a risk.
So, the ultimate result of this case is that at least one judge of the FCC has held that the mere fact that a person has been charged with an offence is enough by itself to permit the Department to proceed with the cancellation of a visa.
The difficulty of course, is that a visa holder may ultimately be found innocent of the charge, but will nonetheless have suffered the cancellation of her/his visa, become an unlawful non-citizen, and be subject to detention and removal.
In my view, this interpretation of the law opens the door to what I would describe as the arbitrary and capricious exercise of the visa cancellation power in a way that disregards the cherished principle of the presumption of innocence. And it is an approach that in my view is contrary to Australia's democratic “system of governance”.
I can tell you that it is my opinion that section 116(1)(e) is an odious provision of the law, one that should be dispensed with. (And I say that without condoning the client's alleged criminality, which, if and when proven, should be dealt with appropriately by the criminal justice system).
What are your thoughts?