Australian Immigration Daily News

In the article that I posted on the Migration Alliance blog yesterday (24 June 2015) I reviewed the recent decision of the Full Court of the Federal Court, Moana v Minister for Immigration and Border Protection 2015) FCAFC 54 which addresses the “mandatory relevant considerations” that the Minister must take into account when exercising the powers under section 501(2) of the Migration Act to cancel a person’s visa on “character grounds”. 

In brief, the Court held in Moana that it is mandatory that the Minister consider whether there is a “risk of harm” that would arise from the person’s remaining in Australia, but at the same time it is not mandatory that the Minister weight the likelihood of harm (for instance to evaluate how likely it is that the person might re-offend). Interestingly, although the Court in Moana held that “likelihood of harm” is not a “mandatory relevant consideration”, it is nonetheless a consideration that would be of central importance in most cases involving visa cancellations.  The upshot of the Moana decision is that Ministerial decisions to cancel visas on character grounds that have not involved weighing the “likelihood of (future) harm” may well be vulnerable to challenge on grounds of “jurisdictional error”.

Today, I turn to discussion of another, although older, case that also relates to the matters that must be considered by the Minister when cancelling a visa on character grounds – Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) FCAFC 256 (17 September 2014). The Hyunh case is frequently cited and referred to in Federal Court decisions that review visa cancellations (for example in the very recent case of Berryman v Minister for immigration and Border Protection (2015) FCA 616 (23 June 2015)).  It is therefore important for RMAs who deal with visa cancellation cases to be aware of this case as well.

The question before the Full Court in Hyunh was whether Minister has an obligation to give consideration to the specific circumstances surrounding an offence that has led to the imposition of a term of imprisonment of 12 months or more (and has thus caused the holder of a visa to fail the character test).  In particular, the Court in Hyunh examined whether the Minister must consider the level of involvement of the visa holder in the commission of an offence, and whether it is necessary for the Minister to consider the “sentencing remarks”, or comments made by the courts when imposing a prison sentence.

The personal circumstances of the visa holder in Hyunh were highly sympathetic. She was a Vietnamese national, born in 1952, who was married at the age of 15 who had 6 children and nine grandchildren all living in Australia.  The visa holder’s husband and their two eldest sons had come to Australia as refugees in 1978, leaving her behind in Vietnam with the 4 other children. Shortly after he arrived in Australia the visa holder’s husband became involved in de facto relationship with another woman. It was not until 1992 that the husband sponsored the visa holder to come to Australia, after the eldest son had prevailed on him to do so. However, she lived with her husband for only a short period, and then they divorced. Soon afterward, the visa holder learned that the eldest son had been a heroin user.

The circumstances that led to the visa holder’s being sentenced to prison were that she was arrested in a car while in possession of a number of balloons containing heroin.  Her arrest occurred after the police observed her son apparently supplying drugs to a known heroin addict, and followed him back to the car where the visa holder was sitting.  After proceedings were brought against her in the District Court of NSW, she was sentenced to a two year prison term.  When passing down this sentence, the presiding judge observed that there was: “no real evidence as to the level of complicity of either you and your son” although it had been suggested that the visa holder was only assisting her son and was not a “principal” in the drug offence.

The non-parole period of the visa holder’s sentence was later reduced to 12 months as a result of an appeal to the NSW Court of Criminal Appeal.

Nonetheless, the visa holder’s record of conviction and sentence came to the attention of the Department. The Minister proceeded to cancel her visa, which would of course have led to her deportation back to Vietnam.  She therefore sought review in the Federal Court and, in the first instance, was successful in overturning the cancellation decision.  The judge who heard her case in the Federal Court concluded that: “the extent and degree to which the visa holder falls short of statutory character is a prime matter for the Minister to take into account” and that accordingly, “the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes will be highly relevant”.

Unfortunately for the visa holder, the Full Court did not agree with this interpretation of the Migration Act. The Full Court held that the Minister is not required to consider the particular circumstances of an offence, or consider matters such as the visa holder’s level of involvement. Further, the Full Court held that it is not essential that the Minister review the remarks made by the criminal courts when handing down prison sentences that ultimately cause a visa holder to fail the character test.

In a word, the Hyunh decision tells us that if a person fails the character test as a result of having been sentenced to a prison terms of 12 months or more, it is not mandatory for the Minister to consider the surrounding circumstances regarding the visa holder’s participation in the offence (although the Minister may, as a matter of discretion, elect to take such matters into account). Under the Hyunh decision, it is enough that the visa holder has been given a prison sentence of at least 12 months. That circumstance alone can support a Ministerial decision to cancel a person’s visa.

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