Australian Immigration Daily News

The cancellation of visas on character grounds continues not only to prompt what appears to be a flood of litigation in the Federal courts, but also to attract attention in the media.

As a matter of fact, there was an article in yesterday’s (29 September) Sydney Morning Herald on this subject, “Raised in Australia, he’s among a wave of Kiwis held on Christmas Island as visas revoked”, which can be found by clicking on the link.

The article focuses on the story of a 29-year old man, Ricardo Young, who has lived in Australia since the time he was 4 years old, when he arrived with his parents from New Zealand. It says that Mr Young did all his schooling in Australia, played “lower grade rugby league”, and has a 5 year-old daughter and partner of 8 years in Sydney. The article also recounts that Mr Young served a two-year prison sentence for aggravated robbery and assault. On the morning that he was scheduled for release from prison, he was taken from the Silverwater Jail to the Villawood immigration detention centre. He was then taken to Christmas Island.

According to the Herald article, as at 31 August 194 New Zealanders were being held in Australian immigration detention facilities. The article goes on to say that the situation of people like Mr Young, who have been long-term residents of Australia and who have few connections to New Zealand “has sparked concern at the highest levels of the New Zealand government”.  The article further reports that the Foreign Minister of New Zealand has raised the issue with Australian Foreign Minister Julie Bishop, and that it was agreed that a “wider discussion” between the two countries’ Immigration Ministers should occur.

It is anybody’s guess when the discussions between the Australian and New Zealand Immigration Ministers will take place, and what, if anything, may come of these discussions if and when they do take place.

While no one can condone or excuse, for a single second, the criminal acts that lead to non-citizens having their visas cancelled, at the same time one might, perhaps, have sympathy for the people who find themselves in these situations. The article in the Herald concludes with Mr Young’s statements to the following effect:

“I’ve only known the Australian way. I’ve got nothing there (in New Zealand). No friends, no family. If I do go back to New Zealand, there’s no point in living in this world.”

Having written many articles for this blog on visa cancellation cases, I have pondered, and plagued my ever-patient wife and son, with questions about what they think about the visa cancellation powers under the Migration Act.  As a migrant to Australia myself, it has struck me as somehow deeply ironic that Australia, originally settled as a “convict colony”, is now “sending people back to where they came from”.

And as someone who has spent a lot of his professional life as a prosecutor (albeit dealing with environmental crimes) I have wondered whether it is really proper for a person to be held in immigration detention awaiting removal for a period longer than their original prison sentence for the underlying criminal offence. Do other countries deport long-term residents who have committed criminal offences? Do the conditions at immigration detention facilities really comply with international human rights standards? (The many news reports that I have seen clearly say that they do not.) Should all people who fail the character test be subject to removal, or should distinctions be drawn based on the relative seriousness of their offending? Based on the news report about Mr Young, it seems as if the offences that he was convicted of were “less serious” than in some of the cases that I have covered in my posts.

Lastly, is there really any meaningful review in cases where the Minister personally exercises the cancellation power? As a commenter on one of my recent posts noted, how much good does it do a person to challenge a Ministerial decision to cancel a visa on the basis of “jurisdictional error”?  If the Minister has failed to have regard to a mandatory relevant consideration before cancelling someone’s visa, is it not open to the Minister simply to “re-consider” the matters not originally taken into account, and then proceed with cancelling the visa and deporting the person (after lengthy and expensive proceedings in the Federal court?).

I leave it to readers to consider these and the many other questions that are raised by the visa cancellation power, and invite all of you to contribute your views in the comments section below.

In the meantime, I will turn to a discussion of a visa cancellation case that was decided by the Full Court late last week, Brown v Minister for Immigration and Border Protection (2015) FCAFC 141 (24 September 2015).

This case raised the important questions of whether the Minister must consider the “best interests” of the visa holder’s children when personally exercising the visa cancellation power, and, if so, what “weight” should be assigned to this factor in the overall decision as to whether to proceed with visa cancellation (and the inescapable consequence, “deportation of the person”, or “removal” as it may euphemistically and legalistically described).

On the first question, the answer given by the Full Court in Brown was a definitive and resounding “yes”.  As the Full Court noted, Australia is a party to the “Convention on the Rights of the Child”.  Article 3.1 of this Convention provides that in all actions concerning children that are undertaken by administrative authorities (such as the Department of Immigration) or courts of law, “the best interests of the child shall be a primary consideration”.  

Consequently, in cases where the Minister wields the visa cancellation power, it is mandatory that the Minister consider whether cancelling a visa would be in the best interests of the visa holder’s children.

The next logical question would seem to be: “If the best interests of children must be considered, what weight should the best interests play in determining whether the visa cancellation should be upheld?”

It is at this point, however, that it appears that judicial intervention will come to an end. In the Brown case, the Minister found that the interests of the visa holder’s children would be best served if his visa was not cancelled (and he was thus able to remain in Australia, rather than being sent back to the United Kingdom). However, the Minister had decided that the best interests of the children were “outweighed” by the seriousness of the visa holder’s criminal offence, and the risk that would be presented to the Australian community if he were to re-offend.

There can be no doubt that the offence that the visa holder in Brown had been charged with was extremely serious. He had been convicted of shooting with intent to murder and had personally fired the shot that seriously wounded his victim.  The sentencing judge described the crime as a “cold-blooded assignation attempt” that had been     “pre-planned”, and had sentenced the visa holder to a prison term of 15 years.

The Court in Brown held, in clear and unequivocal terms, that the courts will not engage in “merits review” of the Minister’s visa cancellation decisions, and that the role of the courts is limited to determining whether the visa cancellation power has been exercised “lawfully”.  Therefore, the courts may overturn a visa cancellation action that has not been made “in accordance with law” – in other words, in circumstances where the Minister fails to consider a matter that is a “mandatory relevant consideration:”, such as whether the cancellation of a person’s visa would be consistent with the best interests of the person’s children. 

However, the Court ruled in Brown that it is not the role of the courts to determine what relative weight should be given to the competing considerations in a visa cancellation case – for example, what weight should be assigned to the best interests of children, in comparison, for example, to the weight that should be given to the risk of harm to the Australian community if the visa holder should re-offend.

Therefore, the mere fact that “reasonable minds might differ” as to whether a visa cancellation should proceed in the particular circumstances of a case is not, under the decision of the Full Court in Brown, reason enough to overturn the cancellation.  As long as the relevant considerations are taken into account, the Minister’s decision to cancel a visa will not be reversed, even if the reviewing court does not agree with the conclusions that have been made by the Minister and considers that the visa should not have been cancelled.

The Brown case highlights the fact that a decision by the Minister to personally exercise the visa cancellation power is beyond the reach of merits review. 

Should it be? It’s your turn to share your thoughts in the comments section!!!

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