Australian Immigration Daily News

Members of the Migration Alliance are encouraged to nominate for positions to the board of our sister organization, the Migration Institute of Australia on MA’s “United Profession” ticket in the upcoming elections for MIA’s Board of Directors. 

Nominations for the MIA Board are open until 6 October 2015. 

The form that can be used to nominate for the Board can be found at the following link:  

In today’s post, I will continue with my consideration of the question: “How much of a problem does Public Interest Criterion 4020 really present?” 

Readers of the blog will recall that in a post earlier this week, our colleagues at Migration Alliance called attention to two recent decisions of the Federal Circuit Court where a  failure to satisfy PIC 4020 had led to the refusal of visa applications.  In yesterday’s post, I presented a discussion of one of those cases,

Katragadda v Minister for Immigration & Anor.  Today, I turn to the second case, Sun & Ors v Minister for Immigration & Anor, (2015) FCCA 2479 (11 September 2015).

Followers of this blog will recall that Migration Alliance posted an article this past Tuesday (22 September 2015) concerning two recent cases mentioned in Peter Bollard’s newsletter involving Public Interest Criterion 4020. 

That post by Migration Alliance (entitled: “Be very afraid” (in other words, of the possible obstacle that         PIC 4020 might present to successful visa applications)) piqued my curiousity about what happened in those cases, and about how serious a problem PIC 4020 really is. 

This post provides details about one of the cases mentioned in Peter Bollard’s newsletter, Katragadda v Minister for Immigration & Anor, (2015) FCCA 2478 (11 September 2015). 

Regular readers of this blog will be aware that cases exploring the boundaries of the Department’s/Minister’s powers to cancel visas on character grounds probably are the “flavour of the year”: there have been a lot of cases that have addressed this subject!!

On a certain level, it makes “perfect sense” why these kinds of cases keep showing up on Austlii. If you have had your visa cancelled on character grounds, are being held in immigration detention, and are facing the prospect of removal/deportation – in many cases to a country where you haven’t lived since your childhood – then what do you have to lose by seeking review of a cancellation decision on the grounds of alleged jurisdictional error?

After all, the worst thing that can happen to you with this kind of case is that you will “lose”, with the consequence that you will still be facing removal/deportation and with the added possibility that you may have a “costs order” made against you (and is the Australian government really going to pursue an action to collect those costs from you once you have been “shipped” back overseas – and even if it does try to recover its costs, what are the chances that it will ever really see that money? I would venture: “Probably pretty slim!!”)

If you were to kill your wife of 30 years by repeatedly hitting her in the head with a hammer while she slept next to your 8 year old child, and the child woke up during the attack and witnessed some of the fatal blows, what chance  do you think  you would have of getting the Full Court to reverse a decision by the Minister to cancel your visa? 

Well, if you would rate the prospects of a person who has been convicted of such a heinous crime as being “negligible”, “non-existent”, “microscopic”, “below the size of a subatomic particle” or, as Australian lawyers love to say “doomed to failure” – you’d be right!! 

Such was the result in the case of Roesner v Minister for Immigration and Border Protection (2015)  FCAFC 132 (15 September 2015). Yes, in this case the Full Court dismissed a challenge to the Minister’s cancellation of his visa on character grounds. This despite the fact that the visa holder had lived in Australia for over 40 years at the time of the offence, and notwithstanding his pleas that he wished to grow old with his children by staying in Australia” (at the time that his visa was cancelled, in August 2014, the visa holder would have been about 73 years old).