Australian Immigration Daily News

A recent decision of the Federal Circuit Court re-enforces that it is critically important that Registered Migration Agents provide correct contact details for themselves on 956 forms that are lodged with the Department.  The case also again emphasizes (not that any further emphasis is needed!) that the deadlines for filing an appeal with the MRT against the refusal of a visa application will be strictly and inflexibly enforced.

The story of this case – Lutchanah v Minister for Immigration & Anor (2015) FCCA 550 (26 March 2015) – can only evoke the strongest feelings of sympathy for the visa applicant.  It is apparent from the factual history, as recounted in the Court’s judgment, that the applicant would almost surely have obtained the visa in question (a subclass 485 visa) if only emails from the Department which sought further evidence in support of the application had been brought to her attention by the migration firm that she used. Likewise, it seems apparent from the decision that the applicant would have filed a timely appeal to the MRT had she been made aware that her visa application had been refused, and that her appeal would very likely have been successful.

Instead, the visa applicant was left in the unfortunate circumstance of “being left out in the cold”: rather than securing a 485 visa allowing her to remain in Australia to work following the conclusion of her studies, it appears that the applicant will be forced to go offshore and to follow a pathway for either independent or sponsored skilled migration.  The applicant’s prospects for returning to Australia are therefore now uncertain, and, at the least, the commencement of her working life in Australia has been significantly postponed.

Yesterday's post by Christopher Levingston which reported that a lecturer at a training course for Registered Migration Agents had informed course participants that the Migration Review Tribunal is "scary" and should therefore be avoided prompted me to do a survey of the most recent decisions of the MRT that are posted on the Austlii Website for the month of February 2015 (the decisions handed down in March 2015 have not been posted to the Austlii site yet).

While the February cases are of course just a "snapshot" of outcomes in the MRT, I am pleased to be able to report that the success rate in the Tribunal during that month was actually higher than the general 30% success rate that Chris had indicated was typical. My review indicated that there were 112 MRT decisions reported on Austlii for February 2015, and of that number a total of 53 appeals were successful! In percentage terms, there were positive outcomes in about 47% of the cases adjudicated during the month!

It is worthy of note that the reversals of the Department's decisions occurred in a wide range of cases - visitor visas, 457 visas, student visas, working holiday visas, prospective marriage visas and partner visas, among others.

In a recent post, I discussed a decision of the Full Court of the Federal Court of Australia which upheld the cancellation of a Refugee and Humanitarian visa that was held by a citizen of Liberia on “character grounds” - Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 (24 March 2015). 

In that case, the visa holder had been convicted in the District Court of South Australia of two separate offences involving unlawful sexual intercourse with a minor under the age of 14 – specifically, a 12 year old girl who was herself a refugee from Liberia. In the Gjbueh case, the Minister exercised his powers to override a decision of the AAT and to re-instate the visa cancellation on the ground that it was in the “national interest” of Australia that he do so.

The article prompted passionate commentary from readers, which included universal and strongly stated condemnation of the criminal conduct which led to the visa cancellation.

In this article, I consider another example of the Department’s visa cancellation power from a somewhat older case, dating to August 2014. This case, Taniela v Minister for Immigration and Border Protection [2014] FCAFC 104 (11 August 2014) provides a graphic illustration that even extremely long-term residence in Australia is insufficient to insulate a New Zealander who is not an Australian citizen from visa cancellation and deportation if they commit serious criminal offences in Australia.

The visa holder in this case was a citizen of New Zealand who arrived in Australia at the age of 6. In 2004 (when he was about 23 years old) he was convicted of two counts of “robbery in company” and was sentenced to 4 years in prison with a non-parole period of 2 years. He was released from custody in 2006. While still on parole, the Department issued a letter to him stating that it was considering cancelling his visa on character grounds.

While he was still on parole, the visa holder (then about 27 years old) committed a bank robbery with three other persons. During this robbery he was armed with a sawed-off shot gun. While this crime was in progress the visa holder and his co-offenders became aware that the police had been alerted to their presence in the bank. They locked themselves in an “ATM bunker room”, and, in an attempt to escape,. Fired shots into a perimeter wall of the bank that adjoined a pedestrian walkway. Two pedestrians were wounded by these shots, albeit not fatally.

The visa holder was apprehended and convicted of a range of offences associated with this second incident, including robbery while armed with a dangerous weapon and discharging a loaded firearm with intent to resist apprehension. For these offences, he was given a sentence of 10 years and three months.

Following this second conviction, the Department cancelled his visa. An appeal to the Administrative Appeals Tribunal followed.  In determining this appeal, the AAT  considered whether the visa cancellation was proper under "Ministerial Direction No. 55 – Refusal and Cancellation Under Section 501”.  Among the factors that were considered by the AAT under the Ministerial Direction were “the strength, duration and nature” of the visa holder’s ties to Australia (which included the fact that if released (from immigration detention) he intended to live in the family home with his parents and next door to one of his sisters and her 4 children. Ultimately, the AAT concluded that the consideration of protection of the Australian community outweighed the other considerations in the case, and affirmed the cancellation of the visa.

The visa holder then appealed the visa cancellation to the Federal Court of Australia, and after failing at that level, to the Full Court.

The primary grounds of his appeal was that the visa cancellation power held by the Department under section 501 was inconsistent with the provisions of another section of the Migration Act, section 201. That section provides, in essence, that a citizen of New Zealand, who has been in Australia for less than 10 years and who commits an offence for which he is sentenced to prison for a term of at least one year may be deported.  In the circumstances of this case, because the visa holder had been in Australia for more than 10 years, he could not have been lawfully deported under section 201.

Unfortunately for the visa holder, the same arguments that he sought to ventilate concerning the supposed inconsistency between sections 201 and 501 had previously been considered and rejected by the High Court in the case of Minister for Immigration and multicultural and Indigenous Affairs v Nystrom, (2006) HCA 50; 228 CLR 566.  In that case, the High Court found that the power of visa cancellation that was created by section 501 is entirely separate and apart from section 201, and may be exercised independently. Consequently, even if a citizen of New Zealand has been resident in Australia for more than 10 years, he or she is still subject to visa cancellation on character grounds under section 501.

Thus, as it was bound to do, the Full Court followed the decision of the High Court in Nystrom and dismissed the appeal against the visa cancellation.

This case shows, in very dramatic fashion, that citizens of New Zealand who have lived in Australia for very long periods of time (either with the special status of “exempt non-citizens” or as holders of “special category” visas) are nonetheless subject to loss of their rights to remain in Australia. This can happen even if the New Zealander has very strong family ties to Australia, as was the circumstance in the Taniela  case.

What is especially striking about this case is that the visa holder might have been considered to be “practically Australian” given that he had lived in Australia from very early childhood. However, his longstanding residence in Australia and his strong family ties here were not considered by the AAT sufficient to counterbalance his record of serious criminal conduct.

The lesson of this case for the many New Zealanders who are living in Australia is that they must be always mindful to “tread lightly” and refrain from the commission of serious criminal offences(surely, committing armed bank robbery, firing a shot-gun through the walls of the bank and wounding bystanders would not come within the heading of "treading lightly" and is the type of serious criminal conduct that risks visa cancellation; likewise carrying out an armed robbery while on parole and after having been given written warning that the Department is contemplating cancelling one's visa is "playing with fire"!)

The repercussions if they do not, as shown by this case, include not only suffering the sanctions of the Australian criminal justice system, but additionally, the risk of visa cancellation and deportation from Australia.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. Tel: (02) 8068 8837 Web: www.concordialaw.com.au

In a recent post, we discussed a case in which the Administrative Appeals Tribunal concluded that an applicant’s failure to truthfully disclose his record of criminal convictions in New Zealand (on his "incoming passenger cards") was a sufficient grounds to disqualify him from Australian citizenship - FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015). The AAT arrived at this determination even though none of the offences committed by the applicant had occurred in Australia – however, before his arrival the applicant had compiled a fairly impressive criminal record in New Zealand, that, as recounted in the AAT’s decision, included convictions for offences such as burglary, theft, possession and cultivation of drugs, unlawful possession of a firearm and serious traffic offences.  While most of these offences had been committed a number of years before the application for citizenship was made, it was the failure to disclose the offences, rather than the offences themselves, that ultimately led the AAT to find that the applicant was not a person of “good character” and thus affirm the Department’s refusal of his application. (One might perhaps wonder why the applicant's actual criminal history itself was not accorded greater weight!)

By way of comparison, I now take up another recent case – Hasib v Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2015) – where the AAT reached the opposite result, and found that an applicant’s criminal record involving 10 incidents of credit card fraud, committed in Australia, did not disqualify him from Australian citizenship.

The applicant in this case had what might be described as a “rocky” history following his initial arrival in Australia from Bangladesh on a student visa.  The applicant first came to Australia in December 2003. In March 2006, his student visa was cancelled on “non-compliance grounds” involving the failure to satisfy attendance requirements of his course.  The cancellation of the student visa was affirmed by the MRT. The applicant then remained in Australia as an unlawful non-citizen for a period of approximately one year, when he was granted a protection visa.

The Full Court of the Federal Court of Australia has rejected a challenge by a citizen of Liberia to Ministerial cancellation of his Refugee and Humanitarian visa. The Court’s decision in the case, Gjoubeh v Minister for Immigration and Border Protection (2015) FCAFC 883, was handed down on 24 March 2015 and is in all likelihood the final chapter in a long-running legal battle.  The consequence of the Court’s decision (in the absence of any further intervention in the case by the courts, which appears to be remote) is that the visa holder will lose the right to continue living in Australia, and will have to return to Liberia, where he may face an uncertain future.

This case had its origins in 2007, when the visa holder had sexual relations on two occasions with a 12 year old girl who was also a refugee from Liberia. The visa holder was 42 years old at the time. These incidents resulted in the girl’s becoming pregnant, and then the termination of that pregnancy.

The visa holder was prosecuted over this conduct in the District Court of South Australia. He was initially convicted of one count of rape and two counts of unlawful sexual intercourse with a person under the age of 14. Following an appeal to the South Australian Court of Criminal Appeal, the rape conviction was quashed. However, the remaining two charges were upheld, and the visa holder was sentenced to imprisonment for a term of 27 months.