Australian Immigration Daily News

Should a doctor who has been convicted of sexually abusing a 19 year old female patient while working in the public health service have his Australian visa cancelled on character grounds? 

That question was presented to the Full Court in the case of Durani v Minister for Immigration and Border Protection (2014) that was decided in July of last year.

One might hazard to guess that if such a criminal history – which, by the way, resulted in a sentence of imprisonment of 2 years and 4 months – were viewed in isolation, apart from any other circumstance of the case - that there is literally no one who would not wholeheartedly agree that a person who has committed such an offence richly deserves to have his entitlement to remain in Australia cancelled. 

Therefore, it may seem somewhat surprising that the result in the Durani case was that the Full Court overturned a decision by the Minister to cancel the visa.  That is, it may seem surprising until one recalls the lesson of the Jagroop case that was the subject of my most recent post on this blog: namely, that the requirement for “procedural fairness” virtually trumps every other consideration. 

Therefore, when the overriding requirement that a visa holder be afforded with procedural fairness is not met, jurisdictional error will be found. The decision of the Minister to exercise powers under the Migration Act to personally cancel a visa will be quashed. And, as illustrated both by the Durani case,  which  involved the sexual abuse of a hospital patient, and in Jagroop, which involved a visa holder who was convicted of manslaughter in the death of his wife, it really doesn’t, in the end, matter how gravely serious the underlying criminal conduct was that resulted in the visa cancellation. 

So – exactly what happened in the Durani case that caused the Full Court to conclude that the visa holder had been denied his right to procedural fairness Minister’s decision to cancel the visa should be set aside? 

The background of the case was that the doctor’s visa was initially cancelled by a delegate of the Minister. The delegate’s decision was appealed to the Administrative Appeals Tribunal.  The AAT determined that the delegate’s decision to cancel the visa should be set aside.

The Minister then “overrode” the decision of the AAT, and reinstated the visa cancellation. 

The Minister’s legal authority to override the AAT in this manner comes from section 501A (2) of the Migration Act.  This section of the Act provides that the Minister may personally set aside a decision of the AAT and cancel a visa if the Minister is satisfied that the cancellation is “in the national interest”.  

The specific issue that was considered by the Full Court in the Durani case was whether the Minister was required to notify the visa holder of the particular respect that the Minister considered that it would be in the national interest to cancel the visa, and to give the visa holder the opportunity to make submissions on that matter before proceeding to cancel the visa. 

The answer given by the Full Court to this question was, effectively: “Yes.” – that procedural fairness does require such specific notice of the basis on which cancellation of a visa is considered to be in the national interest must be given when it is not apparent or obvious on the known material. 

In the Durani case, the Minister had concluded in his statement of reasons for reinstating the cancellation of the visa that the Minister considered the cancellation to be in the national interest because the offences by the doctor had “undermined the integrity of the skilled migration program”.  However, the Minister had not informed the visa holder before making the cancellation decision that the Minister would take the impact of the offences on the integrity of the skilled migration program into account. Nor had the Minister given the visa holder the opportunity to make submissions about whether the offences would affect the national interest specifically by undermining the integrity of the skilled migration program.

The Full Court therefore concluded that the visa holder had been denied procedural fairness. 

In reaching this conclusion, the Full Court relied on the High Court’s decision in the case of Minister for Citizenship v SZGUR (2011) 241 CLR 594 as authority for the proposition that: “procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision of the terms of the statutory power”.   It was the reasoning of the Court that the scope of the concept: “national interest” is extremely broad, and that it might not be apparent to a visa holder that the “national interest” might encompass something like “undermining the integrity of the skilled migration program”. 

One might ask whether ultimately this case, and others like it, where a decision is overturned because procedural fairness has been denied, isn’t “much ado about nothing”.  In truth, there is literally nothing that would prevent the Minister from going back and “curing” the denial of procedural fairness by re-notifying the visa holder of the intention to consider cancelling his visa, and informing the visa holder that one of the bases for doing so was specifically that the visa holder’s conduct had the effect of undermining the skilled migration program.  

However, the possibility does remain – however slight it might appear in a case like Durani - that once given the opportunity to make submissions to the Minister, a visa holder might have been able to make a convincing argument that his visa should not be cancelled. 

There does not seem to be any information available on the Web about what did ultimately happen to Dr Durani’s visa. If any reader is aware if any further action has been taken by the Department, I invite you to add that information in the comments section below.

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