Australian Immigration Daily News

If you had to guess, what chance do you think that someone who has been convicted of “manslaughter by criminal negligence” and who has been sentenced to 8 years imprisonment would have to persuade the Full Court that the cancellation of his visa by a delegate of the Minister should be overturned? 

And suppose you knew that these were the underlying circumstances of the criminal offense that prompted the decision to cancel the visa:  The victim of the offence was the visa holder’s wife. During an altercation, the visa holder pushed her and she fell and hit her head. The visa holder did not call for help or medical assistance, but instead dragged his wife’s unconscious or semi-conscious body across a road and left her lying out of sight near a waterway. The visa holder’s wife was later found dead, submerged in the water.  This incident was not the first time that the visa holder had assaulted his wife. 

Is there anyone out there who would venture to say that the prospects of fending off a visa cancellation decision against such a factual background would be any better than: “zero”? 

Well, the truth of the matter is that this visa holder’s application for judicial review of a decision by the AAT affirming the delegate’s cancellation of the visa was in fact successful.  The case where this result came about was decided about a year ago: Jagroop v Minister for Immigration and Border Protection (2014) FCACFC 123 (23 September 2014). 

The reason for the outcome in this case, which may seem, to put it mildly, “surprising”, is that the Full Court concluded that the visa holder had been denied procedural fairness.  And as we have seen in through our review of the High Court’s judgment in the more recent case of Minister for Immigration and Border Protection v WZARH (2015) HCA 40 (handed down in early November), where a finding is made that a litigant in the Tribunal has been denied procedural fairness, it is virtually inevitable that a finding of jurisdictional error will be made, and the Tribunal’s decision will be “quashed”. 

To summarise the principle in a nutshell, it can be safely stated that: “the requirement for procedural fairness trumps everything!” 

So exactly what happened in the Jagroop case? In what respect was the visa holder denied procedural fairness before the Tribunal? 

The case must be understood in light of section 39 of the Administrative Appeals Tribunal Act 1975.  This section of the Act provides that: 

“……the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents”. 

What caused the Full Court to determine in Jagroop that the procedural fairness requirements that are stated in section 39 had been contravened? 

One of the primary issues during the hearing before the AAT was whether there was a significant risk that the visa holder would re-offend. 

In relation to this issue, the visa holder relied on the evidence of a psychologist who had relied on am “assessment tool”, known as “HCR-20” to form an opinion concerning the level of risk that the visa holder would engage in further violent offences. On the basis of “HCR-20”, the psychologist had determined that the level of risk was “low”. 

In its reasons for affirming the delegate’s decision to cancel the visa, the Tribunal made reference to an academic article that was entitled “The Case Against the HCR-20”. There had been no reference to this article during the course of the hearing before the Tribunal. Even though the Full Court found that the Tribunal member had not expressly relied on the article’s critique of “HCR-20” as the basis for its rejection of the psychologist’s conclusions that there was a low risk that the visa holder would re-offend, it found that the article was capable of having a subconscious effect on the Tribunal member’s mind and thus could have prejudiced the Tribunal member against accepting the opinion of the psychologist that had been founded on the “HCR-20” assessment tool. 

Accordingly, the Full Court determined that the AAT should have disclosed the article that was critical of HCR-20 and should have given the visa holder the opportunity to make submissions regarding it, in accordance with section 39. 

Additionally, in its reasons, the Tribunal referred at length to a text book called “Australian Sentencing: Principles and Practice”. Again, the Tribunal had not disclosed this text book to the visa holder, nor had it given him the opportunity to make submissions concerning the text book.  The Full Court observed that the Tribunal had apparently regarded the discussions of criminological literature in the text book as casting doubt on the submissions by the visa holder concerning the deterrent and rehabilitative effect on him of having been imprisoned. 

So the Full Court decided that the Tribunal’s failure to disclose the text book to the visa holder and give him the opportunity to make submissions about it had also amounted to a denial of procedural fairness. 

You may be asking at this stage: Isn’t this all, in the end, “much ado about nothing”? So what if the case got sent back to the AAT – in the end, wouldn’t the result be exactly the same, and wouldn’t the AAT, after disclosing the article and the text book to the visa holder and giving him the opportunity to make submissions reach exactly the same decision, to affirm the cancellation of the visa? In other words, even if it were the case that the AAT ultimately concluded that there was a low prospect that the visa holder would re-offend, but that the consequences to the Australian community would be serious if he did re-offend inevitably warrant confirmation of the visa cancellation? 

Well, the Minister did make this argument to the Full Court – that remitting the case back to the AAT would be “futile”. 

However, it was the Full Court’s view that it was not necessarily the case that the AAT would, on remand, certainly decide again that the visa should be cancelled.  The Court considered that even though it appeared that the visa holder would face “serious obstacles” in making a case to the AAT that his visa should not be cancelled, there was a possibility that, having regard to all the relevant factors, the AAT might decide that the visa should not be cancelled. 

The lesson of this case, therefore, really is that the requirement for procedural fairness does “trump everything”. That is even true in circumstances where the AAT does not even expressly rely on material that is adverse to the visa holder, but that there is merely a possibility that the material may operate on a “subconscious level” to influence the Tribunal’s decision-making processes against a visa holder. So, visa holders who have lost their challenges to cancellation may be able to “get another bite at the apple” – and may, conceivably be successful – if they are able to show that they have been denied procedural fairness by the AAT!

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