Australian Immigration Daily News

The purpose of this article is to provide readers with details about the decision of Justice John Logan of the Federal Court in the case of Eden v Minister for Immigration and Border Protection (2015) FCA 780 (24 July 2015). 

As my colleague and fellow writer for the Migration Alliance blog, Jerry Gomez reported yesterday, Justice Logan has overturned a decision by the Assistant Minister for Immigration and Border Protection, Senator Michaela Cash, to cancel the visa of Mr Mas Eden.  Mr Eden’s visa was cancelled by the Assistant Minister on the ground that he did not meet the “character test” as a result of his having been convicted for a sexual offence while in Australia. Justice Logan decided to set aside the visa cancellation action on the grounds that it was “unreasonable”, and thus “infected” by jurisdictional error.

The factual background of the Eden case was as follows:

Mr Eden was born in Iran in 1964. He subsequently became a citizen of New Zealand, and then came to Australia under the auspices of a “Special category” visa (subclass 444). His wife was also a citizen of New Zealand. After the time of the offence which prompted the Assistant Minister to cancel his visa, Mr Eden and his wife had a son and were living outside of Brisbane. This child is now approximately 5 years old.

The incident that resulted in the cancellation of Mr Eden’s visa took place in 2009. At that time, Mr Eden was working as a taxi driver.  According to the sentencing remarks of Judge Koppenol of the Queensland District Court (as restated in Justice Logan’s judgment), Mr Eden picked up the complainant, a 20 year old woman, and “groped” her in a sexual manner. Justice Koppenol stated that the video footage that was recorded during the incident in the taxi was “equivocal”, and did not indicate that the assault on the complainant was either “consensual or non-consensual”.  Nonetheless, Mr Eden pleaded guilty to a charge of sexual assault, and, as noted by Judge Koppenol, by doing so conceded that his claim that the young woman had consented to “sexual activity” with him was “not reasonable”.

Justice Koppenol sentenced Mr Eden to a term of imprisonment of 12 months for the offence in December 2011. However, the entire period of imprisonment was immediately suspended, subject to the condition that no further offences that could be punishable by imprisonment were committed within a period of 2 years. 

Although Justice Logan observed that there was a “heinous quality” to any offence involving the sexual molestation of another person, His Honour concluded that the offence that had been committed by Mr Eden was not “very serious”.  In Justice Logan’s words, the sentence that was imposed by the Queensland District Court was “eloquent” as to the low objective seriousness of the offence.

It was the events that followed after Mr Eden was sentenced that proved to be pivotal in leading Justice Logan to conclude that the cancellation of Mr Eden’s visa was “unreasonable” and that the Assistant Minister’s actions in cancelling Mr Eden’s visa had the quality of taking a sledgehammer to crack a nut.

First of all, there was a very long period of “delay” between the offence (5 December 2009), the time that Mr Eden was sentenced by the Queensland District Court (December 2011) and the time that the Assistant Minister acted to cancel Mr Eden’s visa (17 April 2015). In other words, about 5 1/2 years elapsed since the time of the offence, and about 3 ½ years had passed, since Mr Eden was sentenced.

Thus, the entire period of Mr Eden’s suspended sentence had gone by before the visa cancellation action was taken.

Justice Logan noted that the Australian Federal Police did not inform the Department about the criminal proceedings that had been taken against Mr Eden until January 2014 (more than 2 full years after the suspended sentence was imposed).  More than a year went by after the Department was made aware of the conviction before the visa was cancelled. 

Justice Logan observed in his judgment that the 2 year period of the suspended sentence that had been imposed on Mr Eden elapsed “without any hint…of offending conduct of any sort by Mr Eden”.  His Honour also observed that it was equally the case that during the period of the suspended sentence, Mr Eden did not receive “a hint from any officer of the Commonwealth that the Minister was even likely to consider his case as one for visa cancellation and deportation”.

In addition to what was seen by Justice Logan to be the low objective seriousness of the offence, the lengthy delay between the offending conduct (2009) and the visa cancellation action (2015), and the Department’s total failure to inform Mr Eden concerning its intention to consider cancellation of his visa,   a further factor that led Justice Logan to conclude that the visa cancellation was unreasonable was the impact that it would have had upon Mr Eden’s family, especially his young son.

In fact, in considering the factors relevant to the cancellation of Mr Eden’s visa, the Assistant Minister had herself specifically found that Mr Eden’s deportation would cause emotional and financial distress to the child and would “disrupt the relationship between father and son” (the evidence indicated that if Mr Eden were to be deported back to New Zealand, his wife and son would remain in Australia). The  fact that the deportation of Mr Eden would have been contrary to the “best interests” of his young child thus  carried weight with the Court in its determination to reverse the cancellation decision.

What this case teaches then is that not every criminal offence that leads to a sentence of imprisonment of more than one year, and which causes a visa holder to “fail” the character test, will mean that a visa cancellation decision cannot be successfully challenged.  That is true even when the offence is one that is of a “sexual” nature, as in the Eden case. 

Where the offence is one that is regarded by the courts to be one of “low objective seriousness” and attracts a punishment that suggests that the sentencing court considered the “seriousness” to be very low, then the offence may well not be regarded as one that justifies the additional sanction of visa cancellation and deportation. 

(At the same time, one might wonder whether the outcome of the Eden case might have been different if the offending conduct had been seen to be of a  more “serious” nature – for example if the evidence as to whether the conduct in question was “consensual” or “non-consensual” had not been regarded by the District Court as being “equivocal”, or if the conduct in question had gone beyond “groping” to a more severe form of sexual assault).

It is also plain that a lengthy bureaucratic delay (for example, a delay like the one that occurred in this case that extends over a period of many years) on the part of the Commonwealth authorities between the time that an offence occurs and sentence is imposed, and the time that a visa cancellation action is taken, may very well be a significant factor that could lead a court to set aside the cancellation.  This may be especially true if, as in the Eden case, a strong parental relationship develops between the visa holder and a young child during the intervening period between the offence and the visa cancellation, such that deportation of the visa holder would be viewed as impacting negatively on the child’s best interests.  

At the same time, one can surely imagine circumstances where even long and inexcusable delay by the Department in cancelling a visa might not be seen as a particularly important factor – especially where the “criminality” that leads to the cancellation decision is particularly serious (for example offences involving murder, rape, assault occasioning grievous injury, distribution of illegal drugs and the like).

Beyond the factors that led Justice Logan to determine that the cancellation of Mr Eden’s visa was “unreasonable”, there was another aspect of the way that the Department handled Mr Eden’s case that Justice Logan apparently considered to be problematic.  That was the way that Mr Eden was taken into custody and placed in immigration detention. According to Justice Logan’s judgment, Mr Eden was “roused at his family home…at about 5:00 a.m. in the morning”, arrested and taken into detention, and was not given a copy of the Assistant Minister’s reasons for cancelling his visa until the day after his arrest. 

Justice Logan accepted that the way that Mr Eden was taken into custody was not relevant to the question of whether the visa cancellation was “unreasonable”.  Nonetheless, the government’s actions did not appear to sit well with Justice Logan. In his judgment, His Honour wrote that: “Some might, perhaps, regard the adjective heinous as…applicable…to this type of behaviour” by officers of the Commonwealth.

It surely seems to be the case that the government could and should have used “gentler” procedures for taking Mr Eden into custody (perhaps, for example, by informing Mr Eden of its intentions to cancel his visa and to place him in immigration detention and giving him the opportunity to present himself to law enforcement authorities, rather than arresting him at his house at a very early hour of the morning).

This case represents another example of a situation where a person has been held in immigration detention for a longer period than the person served in prison for the underlying criminal offence (again, in this case, Mr Eden’s sentence for the sexual assault conviction was immediately suspended, while he was held in immigration detention for nearly 3 months, from late April –late July 2015). And as it turned out, Mr Eden was wrongfully placed in immigration detention, and thus wrongfully deprived of his liberty while his challenge to the visa cancellation was awaiting determination before the Court.

In my opinion, outcomes of this kind are worrisome and highly problematic:  Is it truly necessary to hold every person who has had their visa cancelled in immigration detention, even when the criminality that has prompted the cancellation is seen by the courts (rightly or wrongly) to be of such a low level that it does not justify anything more than a suspended sentence? And isn’t it really a form of additional “punishment” to hold a person in immigration detention while the visa cancellation decision is being reviewed? Isn’t this an aspect of the migration legislation that is worthy of reconsideration and possible reform?

What do you think?

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