Australian Immigration Daily News

Under the Migration Amendment (Character and General Visa Cancellation) Act 2014, the Minister for the Department of Immigration and Border Protection now has a mandatory duty to cancel the visa of a person who fails to satisfy the “character test” by reason of having a substantial criminal record (defined to mean, among other things, having been sentenced to a term of imprisonment of 12 months or more).  This amendment came into force on 11 December 2014 and is now codified at section 501(3A) of the Migration Act.

Procedurally, decisions made by a delegate of the Minister to cancel a visa on character grounds can be challenged by means of an appeal to the Administrative Appeals Tribunal.  However, even if a visa holder is successful in the AAT, the Minister retains power (under section 501A of the Act) to personally substitute his or her own decision for a decision of the AAT and to direct once again that the visa be cancelled. The prerequisites for the exercise of this power are that the Minister must have afforded “natural justice” to the visa holder and must be satisfied both that the visa holder does not pass the “character test” and that it is “in the national interest” of Australia that the visa be cancelled.

The Minister’s powers to substitute a different decision from the one made by the AAT were recently tested in a case that was brought before the Federal Court of Australia, Jione v Minister for Immigration and Border Protection (2015) FCA 144 (3 March 2015). The full text of the decision can be found at the following link:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/144.html?stem=0&synonyms=0&query=jione

The visa holder’s (Jione’s) background, as described in the Court’s judgment, reflected a serious criminal history.  Jione had entered Australia as a Fijian national when he was about 16 years old.  In July 2005, he was involved in a violent incident which was characterized as a “systematic, brutal and repeated assault” that left the victim, a father of three children, with “comprehensive brain damage”, causing him to be left in a permanent vegetative state from which he is not expected to recover.  In 2007, Jione was sentenced to 12 years in prison for his participation in this assault.

It was this criminal record which prompted the Minister’s delegate, at first instance, to cancel Jione’s visa. 

In the course of an appeal against this cancellation before the AAT, evidence was led concerning Jione’s personal background and his rehabilitation since the time that he had been incarcerated.  This evidence indicated that alcohol abuse had played a large part in causing Jione to participate in the assault, as had repressed anger resulting from Jione’s having himself been a victim of sexual abuse when he was 9 years old.

There was also evidence in the AAT that Jione had participated in rehabilitation and vocational courses while in prison and after being released on parole in 2013; that he had put aside his alcohol and drug abuse; that he had complied with his parole conditions; and that he was working to support himself and his family.

On the basis of that evidence, the AAT concluded that there was a low risk that Jione might re-offend.

Consequently, the AAT determined that it was appropriate to set aside the cancellation of Jione’s visa.

However, the Minister then saw fit to personally exercise the powers under section 501A of the Act and to re-instate the cancellation of the visa. The basis for the Minister’s reversal of the AAT’s decision, as given in the Statement of Reasons provided in support of the visa cancellation, was that even though the risk that Jione might re-offend was considered to be “low”, the commission of a similar offence might result in the imposition of significant additional law enforcement and medical costs on the Australian community.

In the event, the Federal Court (per Justice Buchanan) decided to set aside the Minister’s cancellation of the visa.

The basis on which the Court relied to vacate the cancellation was its conclusion that the Minister had not complied with the requirement of section 501A to afford “natural justice” to the visa holder Jione. Specifically, Justice Buchanan found that the Minister’s Statement of Reasons for reversing the AAT’s decision did not make it clear enough that either the past economic consequences associated with the offence that led to Jione’s imprisonment, or the possible future economic cost to the Australian community that might be occasioned by a future offence, would be taken into account as a relevant factor.

Justice Buchanan further declared that if it was the Minister’s intention to approach the question of cancellation of Jione’s visa either on the basis that Australia would expel any person convicted of a violent crime, or that the possibility of any future crime of violence would be grounds for visa cancellation, that position should have been clearly spelled out in the Statement of Reasons.

It was Justice Buchanan’s view that the Minister had therefore failed to comply with the standards for providing “procedural fairness” or “natural justice” that were outlined in the case of Commissioner for Australian Capital territory Revenue v Alphaone Pty Ltd, (1994) FCA 1074, (1994) 49 FCR 576.  Those standards require a “decision-maker” (in this case, the Minister) to identify any issue that is critical to the decision,  and to ensure that the person who will be subject to the decision is given the opportunity to provide information and make submissions in relation to that issue.  Since it was Justice Buchanan’s conclusion that this had not been done by the Minister, His Honour determined that it was proper to vacate the cancellation of Jione’s visa.

It appears possible that Justice Buchanan’s decision may not be the final word on Jione’s future in Australia, and that there might be more chapters to this story.  In the judgment, Justice Buchanan did observe that it was open to the Minister, in making an assessment of the “national interest” to have regard to the burden on the Australian community in terms of law enforcement expenses and medical costs in the event of a further offence by the visa holder.   Thus it appears that the judgment is “signaling” that there would be no “jurisdictional error” (erroneous conclusion of law) that would prevent the Minister from curing the failure to provide “natural justice” to Jione and then re-issuing a visa cancellation.

It is also likely that there will be future cases where visa holders who have been convicted of serious criminal offences will have their visas cancelled, due to the mandatory visa cancellation provisions that have been introduced under the Migration Amendment (Character andGeneral Visa Cancellation) Act 2014.  It will be difficult to challenge actions by the Minister to override the AAT  as such challenges will not be able to be based “on the merits” (merit review will be available only at the AAT stage) but will only have a prospect of success if “jurisdictional error” can be demonstrated.

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) 8062 8837, Web: www.concordialaw.com.au