Australian Immigration Daily News

Issues concerning sexual abuse of children and removing people who are seen to pose a risk to the Australian community have been very prominent in the news media in recent weeks. The on-going enquiry of the Royal Commission into Institutional Child Sexual Abuse, and the Abbott Government’s proposals to strip Australian citizenship from dual nationals who fight for the “Islamic State” have certainly brought considerable public attention to both of these issues.  

Indeed, my own article on the Migration Alliance blog concerning the case of Gjoubeh v Minister for Immigration and Border Protection (2015) FCAFC 883, in which the Full Court of the Federal Court affirmed the Minister’s decision to cancel a humanitarian visa held by a foreign national who was convicted of raping a minor child undoubtedly prompted the most passionate commentary from readers of the blog than the discussion of any other case that I have reviewed. 

It is therefore both timely and worthwhile to discuss a recent decision of Justice Logan of the Federal Court which overturned the Minister’s decision to cancel a visa held by another person who was convicted of a sex offence, Stretton v Minister for Immigration and Border Protection (No 2) (2015) FCA 559 (5 June 2015). 

It should be noted by readers that the Ministerial decision that was the subject of the Stretton case was made before the Migration Amendment (Character and General Visa Cancellation) Act 2014 commenced.  The visa cancellation decision at issue in Stretton was made on 28 October 2014, while the amendments came into force less than 2 months later, on 11 December 2014.  Under the amendments (new subsection 501(3A) of the Migration Act), the Minister has a mandatory duty to cancel the visa of a person who does not pass the character test due to having committed sexually based offences involving a child.  Therefore, if the Ministerial decision that was under challenge in Stretton had been made after the amendments commenced, it is entirely possible that the result of the case would have been different, and the visa cancellation would have been affirmed.

The visa cancellation in the Stretton case followed after Mr Stretton (a citizen of the United Kingdom who held  a “5 year resident return visa”) was convicted in the Queensland District Court of three counts of “indecently treating” (in other words, sexually abusing) a child under the age of 12 years.  The victim in the case was Mr Stretton’s granddaughter, who was 8 to 9 years old at the time of the offences.  Mr Stretton was sentenced to two years imprisonment on each of the three charges, with the terms of imprisonment to be served concurrently and suspended after he had served 6 months in prison.

Following the Minister’s cancellation of his visa Mr Stretton was arrested at his home in Queensland by the Australian Federal Police and was taken to the immigration detention facility at Villawood, near Sydney. He remained in immigration detention from 4 November 2014 until the Court quashed the cancellation of his visa earlier this month, a period of approximately 6 months. So in the event Mr Stretton was held in immigration detention for about the same amount of time that he was in prison serving his sentence for the original offence.

It is apparent from Justice Logan’s decision that the factors that saved the Mr Stretton from losing his visa and being deported back to the UK were his longstanding residence in Australia and his strong ties to Australia. 

Mr Stretton’s history was that he had been brought to Australia by his father at the age of 6 in 1961, after his mother had died of cancer.  Up to the time that his visa was cancelled he had never gone back to the UK. He had only been outside of Australia for a total period of about two weeks and had lived in Australia for a total of 48 years at the time that he committed the offences. His wife is a British citizen who is also a long-time resident of Australia. At the time of the Court’s decision Mr Stretton’s father was still an Australian resident, aged in his 80s and described as being in “indifferent health”. Mr Stretton had four Australian citizen children, 4 grandchildren and 22 other relatives in Australia. He had served in the Australian Army Reserve, had been employed in Australia for nearly 40 years. He had not been convicted of any offences since the time that he was about 19 years old, and these offences were not “sex offences” – the previous charges related to theft of a car and minor driving and drug offences.

In reaching the decision to quash the cancellation of Mr Stretton’s visa, Justice Logan took into account the fact Mr Stretton had a “blameless life” from the time that he had met his wife until the offences were committed; that there had not been “a hint of recidivism” since Mr Stretton had been released from prison in Queensland; that while in Justice Logan’s view any incident of pedophilia is “repugnant”, the particular offences were “at the lower end of the range of depravity that paedophilia can entail”; and that since the victim and her mother (one of Mr Stretton’s daughters) were estranged from Mr Stretton the “risk of harm to others was low”.

Furthermore, Justice Logan concluded that stripping Mr Stretton of his visa and deporting him would have the effect of casting him “adrift in his advancing years in a foreign land” and would remove him from the society of his aging father and his other children who wished to maintain contact with him. Justice Logan also observed that upholding the cancellation of Mr Stretton’s visa would present his “blameless wife” with an “agonizing dilemma” of either going back to the UK with her husband and losing the society of her children, or remaining in Australia and allowing Mr Stretton (who had been assessed as being at risk of suicide).

In the end, Justice Logan concluded that the jurisdictional error by the Minister that justified the quashing of the visa cancellation was that the decision had been “unreasonable” (in the sense identified by the High Court in the case of Minister for Immigration and Citizenship v Li, (2013) HCA 18; 2013 249 CLR 332)) when viewed against the entirety of the facts. In other words, it was Justice Logan’s determination that the cancellation of the visa was “unreasonable or plainly unjust”. (One might observe at this juncture that there appears to be little distinguishable difference between overturning a Ministerial decision on the basis that it is considered by a court to be “unreasonable” and “merits review” of that decision!).

What can be taken away from this case is that (at least in cases involving cancellation decisions made before the commencement of the mandatory cancellation provisions introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014), there is likely to be reluctance on the part of the courts to allow the deportation of a person who has lived in Australia for a long period of time, has strong ties to Australia and few ties to her or his country of origin, who is unlikely to re-offend, and where the risk of possible harm to the community that would be occasioned by allowing the person to stay in Australia is low.

In his concluding observations in the Stretton case, Justice Logan remarked that it was his opinion that the Minister’s decision to cancel Mr Stretton’s visa had been akin to “cracking a nut with a sledgehammer” – that this administrative action was “far in excess” of what was necessary for the purpose of protecting the Australian community.

What do you think?

 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