Australian Immigration Daily News

Regular readers of this blog will be aware that cases exploring the boundaries of the Department’s/Minister’s powers to cancel visas on character grounds probably are the “flavour of the year”: there have been a lot of cases that have addressed this subject!!

On a certain level, it makes “perfect sense” why these kinds of cases keep showing up on Austlii. If you have had your visa cancelled on character grounds, are being held in immigration detention, and are facing the prospect of removal/deportation – in many cases to a country where you haven’t lived since your childhood – then what do you have to lose by seeking review of a cancellation decision on the grounds of alleged jurisdictional error?

After all, the worst thing that can happen to you with this kind of case is that you will “lose”, with the consequence that you will still be facing removal/deportation and with the added possibility that you may have a “costs order” made against you (and is the Australian government really going to pursue an action to collect those costs from you once you have been “shipped” back overseas – and even if it does try to recover its costs, what are the chances that it will ever really see that money? I would venture: “Probably pretty slim!!”)

On another level, it certainly appears to be the case that the Department/Minister have been pursuing visa cancellations “programmatically” or “with consistent purpose and regularity and increasing frequency”. Indeed, a notice in the newsletter of our sister association, the Migration Institute of Australia that appeared on 16 September 2015 (“MIA News Issue 495”) included a report that the Refugee Council of Australia is “concerned about reports of a recent significant increase in the number of visa cancellations based on character grounds” and is seeking to collate information about these types of cancellations in order to determine an “advocacy strategy”.

Consistent with the “flavour of the year” theme, another Federal Court decision showed up on Austlii at the end of last week, Le v Minister for Immigration & Border Protection (2015) FCA 1018 (16 September 2105) that also dealt with the limits of the cancellation power. This case provides an interesting comparison with the Full Court case that was the subject of my most recent article, Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 (15 September 2015).

The headline for my article about Roesner was that committing murder is a pretty certain path leading to visa cancellation. But the decision in Le illustrates that “it ain’t necessarily so”. Because although the criminal offence that prompted the cancellation action in Le was nearly as serious as murder, the ultimate outcome was that the Minister’s decision to cancel the visa was “quashed” on the grounds of jurisdictional error.

The offence in the Le case was committed by a person who had come to Australia from Vietnam in 1986 as a 12-year old refugee. According to the Court’s judgment, in December 2001, he went to a house in Queensland in the company of his two brothers and another man with a common intention to kill a man who was present in that house. The intended victim was shot, left paralysed and confined to a wheelchair, and two other men were also wounded. Although the visa holder did not actually participate in the shootings, he drove the other perpetrators to the house where the incident occurred, and “assisted or encouraged them by remaining at the scene”.

The visa holder was convicted of the offences of attempting to unlawfully kill, grievous bodily harm, and unlawful wounding, and was sentenced to prison terms totaling 23 years collectively. A little more than 10 years after these prison sentences were imposed, the Minister moved to cancel the visa (although the decision of the Federal Court does not indicate, it appears likely that the visa holder was about to conclude his term in prison and that it was this circumstance that caused the Department/Minister to proceed with action to cancel his visa).

The wrinkle in the Le case was that the visa holder did not hold either Australian or Vietnamese citizenship – he was, in effect, a “stateless” person. As recounted in the judgment of the Federal Court, the Vietnamese government had enacted a decree that provided that Vietnamese citizens who were residing overseas without a Vietnamese passport (as was the circumstance for the visa holder) would lose their Vietnamese citizenship if they did not “register” to retain it by 1 July 2014. In the event, the visa holder (Mr Le) had not registered by the deadline to retain his Vietnamese citizenship.

The consequence was that the visa holder faced the prospect that visa cancellation would result in his being held in immigration detention indefinitely. The visa holder challenged the cancellation decision on the basis that the Minister had failed to consider this possible consequence. And in fact the statement of the minister’s reasons for cancelling the visa did not include any express or specific reference to the possibility that this outcome would occur. Since the Minister’s statement of reasons did not refer to the prospect that the visa holder would be held indefinitely in immigration detention, the Court held that it was fair to draw the inference that the Minister had not, in fact, given consideration to this possibility or taken it into account.

In summary then, the Court held in Le that it is mandatory for the Department/Minister to consider the “legal consequences” of a cancellation decision in concrete, specific and “human” terms – in other words, in terms of the practical effect that the decision will have on the “fate” or future of the visa holder.

In this case, the “legal consequence” of the cancellation would have been that the visa holder would have been placed in immigration detention indefinitely. In the Court’s view, it was “mandatory” that the Minister consider this “legal consequence” prior to cancelling the visa. The Minister’s failure to take this “mandatory relevant” consideration into account proved “fatal” to the cancellation decision and resulted in the decision’s being quashed.

An interesting side note to this case is that the Court rejected a challenge to the visa cancellation on the alternative ground that the Minister had failed to consider matters such as the nature of the visa holder’s involvement in the offences – for example, that the visa holder was not the principal offender in the incident, that he had not personally used firearms when the offence was committed, or that he had received a lesser prison sentence than his “co-offenders”.

In ruling that it was not mandatory for the Minister to take such matters into account, the Court followed the previous decision of the Full Court in the case of Minister for Immigration and Multicultural and Indigenous Affairs v Huynh, (2004) FCAFC 256. In Huynh, the Full Court had held that it is not essential for the Minister to consider “specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed”. In Le, the Federal Court held that this principle remains “good law”.

One of the “lessons” of this case, then, is that a lawyer/RMA who is acting for a person whose visa has been cancelled on character grounds must scrupulously review the written statement of reasons given by which the Minister states the basis for a visa cancellation. If that statement of reasons does not make specific reference to a particular “consideration”, it can be argued that the Minister had not taken that “consideration” into account.

And if it is the case that the “consideration” that has not been “considered” is a “mandatory consideration” – for example, what the “legal consequences” of the decision are, then the decision itself may be vulnerable to challenge on the grounds of jurisdictional error.

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