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Immigration Daily News Hot Off the Presses! Long Legal Saga Ends With Cancellation of Refugee and Humanitarian Visa on Character GroundsAustralian Immigration Daily News
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Hot Off the Presses! Long Legal Saga Ends With Cancellation of Refugee and Humanitarian Visa on Character Grounds
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.
A protracted legal contest then ensued regarding the Department’s attempts to cancel the visa on character grounds. The visa was initially cancelled by a delegate of the Minister in February 2011. The visa holder appealed the cancellation to the Administrative Appeals Tribunal, which set it aside. The then Minister subsequently determined to exercise his powers to override the decision of the AAT, and reinstated the cancellation of the visa.
This action of the Minister was appealed to the Federal Court, which overturned the cancellation on the grounds that the visa holder had not been afforded “procedural fairness” by the Minister, in that he had not given the visa holder the opportunity to comment and make submissions on adverse material before the Minister decided to override the AAT decision.
Following the reversal of the previous Minister’s action, a subsequent Minister again considered the AAT’s decision, and again determined that it was appropriate to cancel the visa on character grounds. The visa holder then appealed that action back to the Federal Court, and when that appeal failed, he appealed further to the Full Court.
The primary ground on which the latest round of appeals was taken against the Ministerial cancellation of the visa was the visa holder’s allegation that the Minister had failed to have regard to all the circumstances of the visa holder’s offending and sentencing before determining to cancel the visa. In particular, the visa holder claimed that the minister did not consider claims that the 12 year old girl had “instigated” the sexual contact that led to his prosecution and conviction.
The Full Court rejected this contention. It concluded that the visa holder had failed to demonstrate that the Minister did not have regard to the question of alleged instigation by the child victim before determining to substitute his judgment for that of the AAT and to reinstate the cancellation of the visa. The Full Court also observed that the question of “instigation” by the victim was a matter that was “lacking any real weight” in the balance of factors to be considered by the Minister.
The result in this case illustrates that a visa holder who commits a serious criminal offence will be at risk of forfeiting their right to remain in Australia, even where the visa holder’s right to be in Australia has been granted on humanitarian grounds.
Indeed, it is somewhat mystifying why the AAT would have found it proper to overturn the initial decision of the Minister’s delegate to cancel the visa. After all, the visa holder had engaged in very serious criminal conduct of a sexual nature that had resulted in a term of imprisonment greater than 12 months, and was, as described by the Minister in the reasons given for reversing the AAT’s decision, “repugnant” by any standard of decency and "good character".
Thus, even though the visa holder exhaustively pursued virtually every imaginable legal remedy available to him to contest the cancellation of his visa, his challenge to the cancellation was ultimately doomed by his own grave misconduct.
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: concordialaw.com.au
Comments
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Thursday, 26 March 2015We do.
Has anyone thought that the decision of the Minister through his delegate which was reviewable by the AAT was the wrong path particularly when the Minister upon losing that case then exercises the power personally and then failed to do it properly. If the finger of blame is to leveled it is to those who give legal advice and support to the Minister.
The conduct of the Applicant is completely outrageous and disgraceful and is worthy of sanction but is it really necessary to punish him twice? He serves a term of imprisonment and also faces deportation. I wonder if his exposure to deportation was raised in the Suth Australian Court of Criminal Appeal. if not it should have been.
By the way the "official" view is that deportation is not"punishment" it is an "administrative consequence." George Orwell is alive and well and living in Canberra and lives in room 101 of the Ministry of Love -
Thursday, 26 March 2015
Those are all interesting points Chris!!! It is certainly the case that the second set of appeals to the Federal Court could have been avoided if the Minister had complied with his duty to afford the visa holder "procedural fairness". You also raise a good point about the second and further sanction being applied to this visa holder of being kicked out of Australia altogether - and one has to wonder what the future would hold for him (when) he is deported back to Liberia as appears certain to occur. One also has to wonder about the sentencing that occurred in South Australia - a sentence of 27 months for 2 incidents of sex with a minor appears ludicrously lenient!!!! It does appear that it will become routine for visas to be cancelled in the case of "serious offences" due to the operation of the recently enacted Migration Amendment (Character and General Visa Cancellation) Act 2014. As followers of this site will be aware I recently posted an article on another visa cancellation case, Jione v Minister for Immigration and Border Protection (2015) FCA 144 (3 March 2015). In that matter, the visa holder won a "temporary reprieve" because there was a finding that the Minister had failed to provide the visa holder in that case with "natural justice". It would appear that the visa holder in that case is likely going to be at serious risk of another round of visa cancellation if the Minister sees fit to go back, cure the failure to provide natural justice and then reinstate the cancellation - the offence in that case was very severe, a beating that left the victim in a permanent vegetative state! The judgment in that case indicated that the grounds of visa cancellation was that there was a high risk that the community would be subjected to additional law enforcement costs and expenses for medical care if the visa holder did re-offend, even though there was a low risk that he would re-offend - so we'll just have to see what happens!! It does appear that the underlying intention of the Character and General Visa Cancellation Amendments was to ensure that visa holders who commit serious offences get booted out, so we'll have to see how this is administered going forward!!
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Thursday, 26 March 2015I met Mr Gbojueh in the course of his long legal battles. The latest decision was somehow expected but still extremely disappointing. The argument that whether he should be given a second chance may be similar as to the case of Chan and Sukumaran - theoretically it can go both way, but when put it on a personal level, it is simply heartbreaking.
Michael, I have been following your case updates and really appreciate your timely and thorough analysis, but may I suggest that the focus to be kept on legal reasoning and not on the person, which we most likely would know very little by reading the judgement alone?
Christopher - the possibility of deportation was mentioned in criminal court. The judge/s thought it was a separate matter, hence it was not a consideration when his sentence was determined. -
Friday, 27 March 2015
Thank you for your comment, and I hope you will continue reading the articles!
Please note that after receiving your comment I did re-read my article and did not find that I had written any "personal commentary" about the applicant. I do note without knowing this person that his circumstances are apparently difficult, as I would assume that if he arrived in Australia under a Humanitarian/Refugee visa from Liberia that a forced return to that country could at the least be difficult and at the worst be extremely difficult for him. I also note Chris's comments that deportation (which of course is the necessary consequence of visa cancellation) may be viewed as a second "sanction" in addition to the term of imprisonment that the applicant was sentenced to arising out of the incidents. The point of my article is to sound a cautionary note to RMAs and others who may be following this site/reading the blogs, namely that the provisions of the Migration Act that provide for visa cancellation do need to be taken seriously as the cases show that the Department is using the visa cancellation power and the Minister is intervening in these cases in circumstances where the AAT decides to set aside the original visa cancellation. Because this is the reality of the situation, it is my view that people who are here in Australia on visas need to be mindful that the consequence of committing a serious criminal offence may go beyond the sanctions of the Australian criminal law system and may very well extend to visa cancellation and the loss of the right to remain lawfully in Australia. -
Friday, 27 March 2015
Dear M,
Thanks for that information.
Davies J in the old case of Pisconeri at the AAT raised the "double punishment" argument and in my view if the SA Court of Criminal Appeal said that Deportation was not a relevant consideration in the sentencing regime then my view is that the High Court may well have taken a different view...however the penalty appeared to be low having regard to the unvarnished facts and I would assume therefore that notwithstanding the conduct that there were afoot mitigating factors that came into play.
Michael was expressing his view, but the only way to resolve the controversy ( if there is one) is to read the judgement of the SA Court of Criminal Appeal that will contain all of the relevant facts. -
Friday, 27 March 2015
The sanctity of the child is paramount. Statutory rape is a serious offense to all in our society. There appears to be no mitigating circumstances other than issues of due process. Why was he not convicted of statutory rape?
· Michael Arch likes this comment. -
Friday, 27 March 2015Honestly just send him back to Liberia. Non-citizen child rapists deserve no special treatment and quite frankly I cannot believe our taxpayer dollars have been wasted letting a non-citizen child rapist appeal like this. There should be a list of offences under the Migration Act which attract mandatory and permanent exclusion from Australia for life. Child rape is one of them. The concept of 'double punishment' only occurs if the rapist has a conscience and feels punished, not whether we think the rapist would feel punished, and not how we might feel if we were in their shoes. NOT OUR PROBLEM!
· Michael Arch and Liana - Allan likes this comment. -
Friday, 27 March 2015
I do not believe that anyone would doubt for a single second that this person's conduct was horrifying and is exactly the kind of behaviour that would justify cancellation of the visa. It does indeed appear that this person was convicted of an offence that would in "non-lawyer" speak be described as "statutory rape". One does have to wonder what possible considerations could have led the South Australian District Court to consider that a sentence of only 27 months was appropriate in the circumstances! Our commenter "M" apparently is acquainted with the former visa holder in a way that readers of the Full Court's decision could not be and all we can go by is the judgment itself. As far as I am concerned, one really does not need to know more, THIS IS A PERSON WHO HAS BY HIS CONDUCT FORFEITED HIS RIGHT TO REMAIN IN AUSTRALIA. What is truly amazing is how this case was stretched out through the judicial process, and as remarked in response to Chris's comment above, that wouldn't have happened if the Minister had provided "procedural fairness" when he first decided to override the AAT. As suggested in my original post, the visa holder only has himself to blame for his present circumstances. It also rather "beggars belief" that the AAT determined to set aside the original visa cancellation!!! That judgment would certainly make for interesting and perplexing reading!!!
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Can someone tell me who pays for all his appeals?