Australian Immigration Daily News

Are things always what they seem? Or not?

Is a case that appears to be “dead on arrival” really in fact as lacking in prospects as it seems to be?

Take for example the case of Spano v Minister for Immigration and Anor (2018) FCCA 2049 (3 August 2018) that was decided by Justice Neville in Canberra.

Over the years that I have been writing commentary on Federal court decisions for Migration Alliance, we have seen that as part of its operations, the Department has been running a small “cottage industry” focused on the cancellation of visas on character grounds.

And we have also seen that it has largely been extremely difficult to challenge decisions made personally by the Minister either to cancel a visa on character grounds, or to refuse to revoke a cancellation on character grounds.

This is so because the scope of review in the Federal courts is limited to whether the Minister’s decision has been affected by jurisdictional error.  Visa cancellation decisions made personally by the Minister are not subject to “merits review”, in contrast to cancellation decisions made by a delegate of the Minister, which are reviewable in the AAT. But when the Minister determines to exercise his personal powers to set aside a decision of the AAT, again such decisions by the Minister are not subject to merits review, but can only be set aside on the basis of a jurisdictional error.

How severely should the visa cancellation power under the Migration Act be exercised?

Should a non-citizen who has been convicted of supplying a commercial quantity of heroin and who has been sentenced to a term of imprisonment of 5 years and 3 months automatically be “kicked out”?

Suppose that the visa holder has been living in Australia since the age of 5 years old?

The Department and the Tribunal can surely be insane and harsh when it comes to claims by an applicant for a protection visa that he is subject to persecution in his home country by reason of his homosexuality.

Here is an example from a recent case that was decided by Judge Smith in the Federal Circuit Court, AMF17 v Minister for Immigration & Anor (2018) FCCA 1848 (11 July 2018).

The applicant in this case had originally arrived in Australia from Cameroon on a visitor visa, and shortly after he applied for a protection visa.  It was the applicant’s claim that he and his partner had been “caught” and had been badly tortured.  He provided evidence of this assault from a medical centre which indicated that he had suffered bruises and abrasions, a swollen face and a black right eye.  The applicant also claimed that his partner had died as a result of the mistreatment.

Does a person who has been taken into immigration detention have any right to demand that he/she be held at a particular place of detention pending the resolution of a request that the cancellation of his or her visa be revoked?

For example, if a person has been living in Tasmania, does that person have a right to be held in detention in Tasmania, in order to be closer to the person’s family and legal representatives?

Or can the person be detained elsewhere?