Australian Immigration Daily News

If you were to kill your wife of 30 years by repeatedly hitting her in the head with a hammer while she slept next to your 8 year old child, and the child woke up during the attack and witnessed some of the fatal blows, what chance  do you think  you would have of getting the Full Court to reverse a decision by the Minister to cancel your visa? 

Well, if you would rate the prospects of a person who has been convicted of such a heinous crime as being “negligible”, “non-existent”, “microscopic”, “below the size of a subatomic particle” or, as Australian lawyers love to say “doomed to failure” – you’d be right!! 

Such was the result in the case of Roesner v Minister for Immigration and Border Protection (2015)  FCAFC 132 (15 September 2015). Yes, in this case the Full Court dismissed a challenge to the Minister’s cancellation of his visa on character grounds. This despite the fact that the visa holder had lived in Australia for over 40 years at the time of the offence, and notwithstanding his pleas that he wished to grow old with his children by staying in Australia” (at the time that his visa was cancelled, in August 2014, the visa holder would have been about 73 years old). 

As readers of this blog will recognize, one of the most common kinds of cases that has been coming before the Federal courts has been appeals against the Minister’s/Department’s cancellation of visas on character grounds, under section 501(2) of the Migration Act.  When one reads these cases, it does appear that the Department (in my opinion, quite properly) is going about the task of identifying persons who have been convicted of serious criminal offences, and exercising the powers under the Act to cancel the visas of these persons.  And it doesn’t seem to matter whether the person has lived in Australia for a long time as a permanent resident. 

As has been said in a trite manner, a person who commits a serious criminal offence will forfeit the privilege of remaining in Australia. And when it all boils down, isn’t this exactly the “social expectation” that is reflected in the legislation? That murderers, child rapists and the like will get “booted” out of Australia? And that when they contest the visa cancellation in Federal court (because, after all, if their visas have been cancelled and they are sitting in immigration detention facing the real likelihood of “removal”, what do they have to lose) that their claims of “jurisdictional error” are going to have the smallest likelihood of success? In this day and age, when there are millions upon millions of innocent refugees who are fleeing from war in Syria, Iraq and elsewhere, who would literally give anything, anything, to have a chance at a peaceful new life in Australia, who could argue that people who have been convicted of serious offences of violence shouldn’t lose their right to be here?

Readers of my posts will be aware that one of the “hot topics” that has been considered over the course of this year in the Federal courts has been whether, when exercising visa cancellation powers on character grounds, the Minister/Department must consider: 1) the risk of harm to the Australian community; and b) the likelihood that the person who is subject to the visa cancellation action will re-offend. The leading authority on this question seems to be the case of Moana v Minister for Immigration and Border Protection (2015) FCAFC 54. The holding in Moana was that the question of the risk of harm is a “mandatory relevant consideration”, so that if there is a failure to consider the risk of harm, jurisdictional error will be found to be present. However, in Moana, the Court held that although assessing the likelihood that the visa holder will re-offend will in most cases be central to the determination of whether there is a “risk of harm”, it is not mandatory in all cases for the Department/Minister to consider the likelihood that the visa holder might re-offend.

In the Roesner case, the Minister accepted in the written “reasons” for the visa cancellation that the risk that the visa holder might re-offend was “low”. The visa holder attacked this finding on the basis that the risk that he might re-offend was not just “low”, but was actually “non-existent”. The visa holder advanced claims that he would not again commit a similar offence because his offending had “occurred after pressure had built up over time, which caused him to lose his head and do something stupid” and that his age meant that he would not “get into that situation again”.

The Full Court did not need to undertake a lengthy or sophisticated analysis to resoundingly reject the visa holder’s claims of “jurisdictional error”. It held that it was reasonably open to the Minister to make a finding that there was a low, and not “no” risk, that the visa holder might re-offend. This result just comports with what we would call “common sense”, doesn’t it? If you once lose self-control to such a degree that you beat your sleeping wife to death with a hammer in front of your own child, wouldn’t we all agree that a person who does this present some measure of risk of doing something similar again in the future, however unquantifiable that risk might be, and however remote that risk might be if the offender has become a person of advanced age after a lengthy prison sentence?

Likewise, the Full Court found in Roesner that there was no substance to the visa holder’s contention that the Minister’s decision to cancel the visa was “unreasonable” in the sense of “lacking an intelligible justification”. The facts of this case are surely extreme, but indeed, who would argue that there is not an “intelligible justification” for cancelling the visa of a person who brutally murders their spouse, and subjects their child to the trauma of witnessing the offence and its horrifying aftermath?

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