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Visa Cancellation: Neither Spousal Relationship Nor Unborn Child Are Mandatory Considerations

Issues relating to the cancellation of visas on character grounds are continuing to receive a great deal of attention both in the news media and in the courts.

Indeed, just last Friday there was a story in the Age about an Australian-born man who has two teen-aged children who appeared to have lost his Australian citizenship (under complicated circumstances described in the news article) and had received a notice from the Department of its intention to consider cancellation (an “NOICC”) of his Bridging Visa E.  The article reports that the NOICC refers to the visa holder’s having been jailed twice for theft and burglary.  The news story also states that the proceedings relating to the cancellation of this person’s visa are being “put on hold” by the Department while it undertakes an investigation to clarify the visa holder’s citizenship and immigration status.

And of course, a great deal of the news coverage concerning Prime Minister Turnbull's first visit to New Zealand focused on concerns raised by NZ Prime Minister John Key that a significant number of Kiwis who have spent most of their lives in Australia are facing deportation back to New Zealand, even in circumstances where it is claimed that the offences they have committed in Australia have been "relatively minor".  The news article that is linked in this paragraph indicated that PM Turnbull has made representations that the appeals of New Zealanders against the cancellation of their visa may be "fast-tracked".

My own reaction to that is "good luck with that one" - in cases where the Minister has personally exercised his powers to cancel a visa, the right of review is limited to going to Federal court and trying to show "jurisdictional error" on the part of the Minister. The scope for making a successful judicial review application on the basis of jurisdictional error are very limited. So I suspect that many Kiwis who have their visas cancelled on "character grounds" are going to have an awfully difficult time challenging the decision. 

As for the courts: last week, on 14 October 2015, another decision came out of the Federal Court concerning the scope of the Minister’s personal powers to cancel a visa.  This case – Mehta v Minister for Immigration and Border Protection (2015) FCA 1096 is especially interesting because it follows in the wake of a case that was decided on 24 September 2015 -  Brown v Minister for Immigration and Border Protection (2015) FCAFC 141 (previously discussed in this blog) – where it was held by the Full Court that it is mandatory that the Minister consider the “best interests” of the visa holder’s children when exercising the visa cancellation power.  

The decision in the Mehta case considers a closely related question: is the Minister required to consider a visa holder’s spousal relationship with an Australian citizen and their unborn child? 

The child in question was born only 1 month after the visa was cancelled. So it was “conceded” in the legal proceedings before the Federal Court that the unborn child could not be considered a “child” for the purposes of cases (such as the Brown case referred to above) that make it mandatory to consider the best interests of a child. 

It might seem “intuitively” that similar considerations would come into play with respect to an unborn child as would be relevant in the case of a child who has actually been born – for instance that the unborn child might be dependent on the visa holder for care and support, among other things.  

Nonetheless, as discussed below, the Federal Court (per Judge Murphy) held that it is not mandatory for the Minister to take into account a visa holder’s de facto partner and their then-unborn child. 

The account of Mr Mehta’s criminal history that is provided in the Federal Court’s judgment is certainly “horrendous”, and there probably would be no argument that, taken in the abstract and apart from any other considerations, it would justify a visa cancellation decision. 

That history was that Mr Mehta and a friend had approached a 19 year old woman who was working as a prostitute in the St Kilda area of Melbourne. After agreeing to engage in sexual intercourse, the woman got into Mr Mehta’s vehicle. He drove to a laneway and then: “held one of her hands and tried to strangle her with his other hand, pulled her hair, bit her, punched her repeatedly, threatened to kill her, and sexually penetrated her before pushing her out of the car naked except for her shoes and jewelry”. 

Mr Mehta was convicted of charges of theft, intentionally causing injury and threat to kill. He was given a prison sentence of 18 months for these three convictions, which was suspended provided that he did not commit any further offences.

(At this point I must observe that it is my opinion from reading the account of these offences that it is hard, if not impossible, to understand why the outcome of the criminal proceedings was such a “lenient sentence” – one would perhaps have to have been privy to the whole of the criminal proceedings in order to be able to know the reasons why the court arrived at this result).

In any event, what ultimately happened during the period of the suspended sentence was that Mr Mehta committed a series of driving offences. Thus, the original suspended sentence of 18 months that was imposed was restored, and Mr Mehta was imprisoned. 

The circumstances that existed between Mr Mehta and his de facto partner were that they had been in a relationship for a number of years before the criminal offences and before the Department issued notice of its intention to consider cancellation of his visa.

His partner provided a statutory declaration to the Department which stated that if Mr Mehta were to be deported it would cause her “so much pain” and that she was “worried for my health when I think of what would happen”. 

An Issues Paper was prepared for the Minister by Departmental staff which said that “Mr Mehta’s removal from Australia would result in his partner and her family experiencing emotional hardship" if his visa were to be cancelled. 

In considering whether the Minister was required to consider Mr Mehta’s spousal relationship and his unborn child, Judge Murphy had regard to a line of legal authority that begins with the case of Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) FCAFC 256. In the Huynh case, the Full Court held that since the Minister may consider matters as broad as the “national interest” when considering whether to cancel a visa on character grounds, the Act should not be interpreted to impose an obligation on the Minister to consider “specific circumstances personal to the visa holder”, such as the circumstances surrounding the offences (for example, the degree of the visa holder’s involvement in the commission of the offences and like factors). 

Judge Murphy also considered the Full Court’s judgment in the recent case of Moana v Minister for Immigration and Border Protection,  where it was held that when considering the question of the “risk of harm to the community”, the Minister is not required to consider specific circumstances personal to the visa holder.  His Honour reasoned that the decision in Moana: “tells against a construction requiring the Minister to take account of factors personal to the visa holder that are unrelated to the risk of harm”. 

Accordingly, Judge Murphy concluded that since the Minister is not required to consider “specific circumstances personal to the visa holder”, the Minister was therefore not obliged to take into account matters “one step further removed from the visa holder”, specifically in this case his spousal relationship and unborn child. 

Since it seems, in light of Brown, that it is really settled that the Minister must take into account the “best interests” of a visa holder’s children, one has to wonder if this case might be taken further, to the Full Court, and whether the Full Court would agree that  “the interests” of a child yet-to-be-born should have to be taken into account by the Minister. 

Where do you think the law should go on this question?

b2ap3_thumbnail_Concordia_20150730-034113_1.jpgConcordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837 

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  • Guest
    Wei Monday, 19 October 2015

    If someone considered to be risk of harm to the community, then the best way is to deport them when possible, regardless if he or she was born in Australia. Community protection should be the first priority for the Minister to consider.

  • Guest
    Wei Monday, 19 October 2015

    So as to those New Zealand Inmates, why thy should be considered differently just because they are kiwi.

  • Guest
    Bea Leoncini Monday, 19 October 2015

    In the wake of ALL that's going on, these commentaries about such related cases are often complex in nature but so necessary so we can look at all of the angles and how these link to the law and to our human status. Gone are the days where it was just a matter of ensuring that ALL the t's were crossed and all the i's dotted and things would be fine - as humanity and law gets entangled the implementation of administrative procedures, compelling circumstances are no longer as compelling as they once were and 'best interest' attracts a narrower focus. Inevitably, appeals further up the ladder would address aspects of the questions you're asking; however, it requires the knowledge, willingness and availability of those to do take things further simply because it's the right thing to do, for people here now and those coming behind them... These posts form part of ongoing conversations we have to have to assist each other in sorting things out so that ALL of us can lift our game up a notch. Thanks Michael.

  • Guest
    Bea Leoncini Monday, 19 October 2015

    Mmmm... the risk that we're all seem to be exposed to is a heightened, though not justified, sense of 'serious danger' which is in the long run as insidious as the impact our current laws are having - the risk of harming the fabric of society with decisions which are likely to get worse before some common sense prevails. This consideration should form part of the bigger picture.

    Really serious crimes have no place in our society - I have no issues with those. Child Sexual Assault, People trafficking, Drug-related and Violent crimes tend to attract long sentences - Those MUST be dealt with.

    However, most people who do crimes which may attract a 12 month jail or suspended sentence serve their time and have low rates of recidivism; there are often mitigating circumstances in many situations that we simply don't know about and people do change and don't do anything like it again or had never ever done anything like it before. If the State Criminal Justice System looks into mitigating circumstances and applies the law accordingly, then s501 should also follow suit.

    The current mantra of '12 month prison (or suspended) sentence and you're out' cannot be a 'once size fits all' solution; it is rather simplistic and it provides immediate relief to you and me, makes the implementation of the Ministerial direction easier and results in long term pain and suffering for those who remain behind, unseen and unknown by the rest of us. Call me a bleeding heart but we ALL deal with people in our respective practices - surely they're not just dollars signs coming through the door - there is always a story behind everything... and it may be a compelling one that requires advocacy, which is what we do, right?, besides, we ALL bleed at some point...

    If we were dealing with chairs or other such inanimate objects instead of people within the current legal framework, then I could understand it - let's get rid of the faulty stock and replace it with a better one or design a totally new onw - but to set a standard which aims so high that it may even be difficult to maintain by the very people who implement it, as it happens right now, seems to be the way we're going and I don't believe the agenda we are pondering to is one that is conducive to the kind of cohesive and civil society we want to live in.

    We will ALWAYS have those who will push the envelope and that's why the law is there but such a simplistic and narrow application of the Character test does nothing to help any of us sleep safer at night just because the Migration Act can deport 'migrants' and the Citizenship Act can cancel strip it from 'naturalised Australians'; this doesn't make society any safer like some of us would like to think - the rest of the population who doesn't fit in either other of the above groups will continue to 'be' here unless we start targeting their Australian born children as further punishment just because 'we can' (and as suggested in various forums, including this one) and why not make the law retrospective to a couple of generations back while we're at it? I think that's been tried in some specific part of Europe, during the early part of the last century and it failed miserably, costing 100 millions lives...

    'Character', 'compelling circumstances' and 'best interest' are complex issues and all three require us to think laterally and intelligently, rather than allowing collective hysteria to establish an unsustainable level of control over people's lives.

    Yes, we are a sovereign nation, though first and foremost, we pride ourselves of being a civil society which has signed up to uphold Human Rights and other Conventions last time I looked (as recent as last Thursday at the RRT); as such, a balance must be found. Discussing these issues through this forum and other networks is important - it helps us to expand our minds as individuals and professionals, no matter what our values and affiliations may be - if we all thought the same and had to agree on everything, the world would be SUCH a boring place...

    Let's be careful what we wish for, we just might get it and then find that we really don't want it... and then, how would we reverse it? With great difficulty, I suspect...

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