Australian Immigration Daily News

There probably hasn’t been any “hotter topic” before the Federal courts this year than the cancellation of visas on character grounds. The issue has also gotten a lot of attention in the news media lately, especially in relation to the cancellation of visas (almost always, “Special Category” visas) held by New Zealand citizens.  

In view of the continuing high level of interest in this subject, it is timely to look at a fairly recent case that came before the Federal Court (23 June 2015) in which a New Zealand citizen unsuccessfully sought to have the cancellation of his visa overturned.  

The case was Rangiwai v Minister for Immigration and Border Protection (2015) FCA 621. The case is particularly noteworthy because it was one where the visa holder was able, in the first instance, to have a decision made by a delegate of the Minister set aside in the AAT, only to have that cancellation restored personally by the Minister on “national interest” grounds and then to have his application for judicial review of the Minister’s decision dismissed by the court. 

The background facts were that the visa holder was convicted in May 2012 of a sexual offence, “indecent treatment of a child under 16 and under care”.  The victim of the offence was the visa holder’s niece.  The offence had occurred when the visa holder was 23 years old, and after he had been drinking alcohol heavily.

Although the visa holder had no prior criminal record, he was sentenced to 18 months in prison. He ultimately served 6 months of this sentence.  Shortly after his release, his visa was cancelled by a delegate of the Minister. 

The visa holder applied for review of the delegate’s decision to the Administrative Appeals Tribunal. His application was successful, and the Tribunal set the cancellation aside: Rangiwai and Minister for Immigration and Citizenship (2013) AATA 171.  In considering the application for review of the delegate’s decision, the Tribunal had regard to the factors that are listed in "Direction No 55 – Visa Refusal and Cancellation under s 501 of the Migration Act”  (which has been replaced by Direction 65 with effect since 22 December 2014).  

The matters that were taken into account by the Tribunal included the fact that the offence involved a crime of a sexual nature, and that sexual crimes are viewed very seriously; that the victim was 14 years old at the time of the offence, and that crimes committed against vulnerable members of the community are serious, and that the victim had been seriously traumatised by the incident.  As against these factors, the Tribunal considered that the sentence that had been imposed on the visa holder was “at the lower end of the spectrum”; that the visa holder had not committed any other criminal offences; that the visa holder had a positive work record in Australia; that he had stated under oath that he had given up alcohol and had a firm commitment to abstain in the future; and that a psychologist who had interviewed the visa holder had prepared a report stating that the risks to the Australian community were “low”. 

The AAT concluded that the case was one where “the community would accept a reasonable degree of tolerance in its attitude toward whether the applicant should be permitted to remain in Australia”.  Upon the “balancing” of the factors in the case, the Tribunal determined that it was appropriate to set aside the delegate’s decision to cancel the visa. 

The Minister, however, took an altogether different view of the case, and in turn, set aside the decision of the Tribunal and “reinstated” the cancellation of the visa. The Minister’s power to set aside the AAT’s decision is founded in subsections 501A(2) and (3) of the Act. These subsections authorize the Minister to substitute a decision for a decision of the AAT, and to personally cancel a visa, where the Minister reasonably suspects that the visa holder does not pass the character test, and where the Minister determines that the cancellation of the visa is “in the national interest”. 

The Minister issued written reasons which stated the basis for his decision to overturn the AAT.  It was the minister’s view that the cancellation of the visa was “in the national interest” because the offending was of a sexual nature, had been committed against a minor, and was “abhorrent” due to the breach of trust arising from the fact that the visa holder was the victim’s uncle. The Minister took the position that the cancellation of the visa was “in the national interest” on the basis that “some offending, such as child sex offences, are so serious that any risk of offending is unacceptable”. 

In the Federal Court, the visa holder challenged the Minister’s decision to override the AAT on the basis that it was “a disproportionate response to the facts” and was, in general, “unreasonable”.  These arguments were rejected. 

The Court held that the task of evaluating whether the cancellation of a visa is in the national interest is one that is the exclusive province of the Minister, and that it is not the role of the courts to substitute their judgment of the national interest for the determination of the Minister.  In essence, the Court held that the review of the Minister’s decision should be limited to considering whether the Minister considered whether the cancellation was in the national interest, and whether a finding that the cancellation would be in the national interest was one that would be “reasonably open” on the facts of the case.  The Court also observed that it is not necessary for the Minister to identify errors in the Tribunal’s decision in order to exercise the power to substitute a different decision for the one made by the Tribunal. 

The lesson of the case: In cases where the record confirms that the Minister has taken the “relevant consideration” – namely, the “national interest” – into account prior to overruling the AAT – it will be extremely difficult to persuade a court that the Minister’s decision to cancel a visa should be vacated.  The court will not involve itself in a “merits review” of the Minister’s decision, and will therefore not seek to substitute its own judgment about whether a cancellation is in the national interests for the conclusion made by the Minister.  So when the Minister overrides the AAT, trying to contest that decision is going to be a very tough battle and one that will probably have very limited prospects for success.

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