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Road Rage Incident Leads To Cancellation Of Kiwi's Visa
A huge amount of media attention over the past year has focused on the cancellation of New Zealanders’ visas on character grounds.
And if that has been a “hot topic” here in Australia, we understand that it is an even “hotter topic” on the other side of the Tasman.
It is therefore timely and worthwhile to take a look at another case that came before the Full Court earlier this year involving such a visa cancellation, Fraser v Minister for Immigration and Border Protection (2015) FCAFC 48 (2 April 2015).
The outcome of this case once again demonstrates just how difficult it is to challenge a visa cancellation decision that is made personally by the Minister. There is no avenue for obtaining “merits review” of such an action.The only grounds of challenge is to demonstrate that there has been some form of “jurisdictional error” that has affected the manner in which the Minister has exercised the discretion to cancel a visa.
This is such a narrow ground that people who are trying to contest the Minister’s decisions may well find themselves “grasping at straws”. That is especially true when the underlying “criminal conduct” which prompted the visa cancellation has been “severe”. Where the offence has been particularly grave, longstanding residence in Australia is almost surely not going to be sufficient to protect a New Zealand citizen against visa cancellation.
The background facts in the Fraser case were as follows: The visa holder (Fraser) had arrived in Australia from New Zealand with his mother and sister in 1998, when he was 6 years old. The road rage incident that led to the cancellation of his visa occurred in November 2011, when he was about 19 years old.
As recounted in the judgment of the Full Court, the incident began when the driver of another car honked his horn at Mr Fraser after Mr Fraser had driven erratically in front of him. Fraser then followed the other driver to a car park, waited for the other driver to return to his car from the shops, and “savagely” assaulted the other driver with a metal bat on the arm, shoulder and around his head. The victim was beaten to the point of unconsciousness in front of his wife and children, and suffered serious injuries.
Fraser was initially charged with the offence of wounding with the intention of committing grievous bodily harm. Subsequently the Crown accepted his plea to the lesser charge of “reckless wounding”. He was sentenced by the District Court of NSW to a term of imprisonment of 4 years with a non-parole period of 2 years. (I would observe that based on the description of the injuries inflicted on the victim during the road rage incident that this sentence appears to me to have been somewhat “lenient”).
So what submissions were made on behalf of Mr Fraser to try to get the Minister’s cancellation of his visa overturned?
First it was argued that the Minister had failed to give “proper, genuine and realistic consideration” to the risk of harm to the Australian community”. In particular, it was submitted that the Minister had failed to make appropriate enquiries concerning Fraser’s conduct since the time that he had been released on parole.
This submission was not successful. The Full Court held that the Minister was not under a “free standing duty to make further enquiries”. It was sufficient that the Minister had regard to the material that was before him at the time that he had made the decision to cancel Mr Fraser’s visa. The record indicated that the Minister had regard to Fraser’s criminal history, which was not limited to the road rage incident. In his statement of reasons for cancelling the visa, the Minister had concluded that there was a risk that Fraser would re-offend, based on his prior violent offending, his disregard for judicial orders and the fact that he had taken limited action to address his “anger and mental health issues”.
The Court also rejected a submission on behalf of Mr Fraser to the effect that the Minister was legally required to “quantify the risk” that he would re-offend. The Full Court found that it was sufficient that the Minister had determined that there was a risk that Fraser might re-offend, and that the Minister had concluded that if Fraser did re-offend, the harm that would be occasioned would be “serious”.
The last submission that was advanced for Mr Fraser was that the Minister’s decision to cancel his visa was affected by “apprehended bias”, due to the fact that the Minister had made various public statements to the effect that “visa holders who commit crimes in Australia can expect to be treated without much sympathy”.
The Full Court rejected that submission. In doing so, it was bound by the judgment of the High Court in the case of Minister for Immigration and Multicultural Affairs v Jia Legent (2001) 205 CLR 507. In that case, it was held that “a Minister may..speak freely about government policy…without compromising his or her right and obligation to exercise a power conferred to decide a matter under current law”.
Consequently, the mere fact that the Minister had made statements that it would treat visa holders who had committed serious criminal offences “with little sympathy” was not sufficient to show that the Minister had been biased in Fraser’s case. The Full Court found that the Minister had directed his attention to the particular circumstances of Fraser’s case, and had thus properly discharged his duties when exercising his discretion to cancel the visa.
The clear lesson of this case is that under the current legislative framework, a person (New Zealander or of other nationality) who commits an offence involving serious violence that results in a sentence of imprisonment of a year or more, and who also has a prior history of violent offending, is going to have a very hard time fighting the cancellation of her or his visa.
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Comments
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Monday, 23 November 2015I wholeheartedly agree with the Minister's decision to cancel this person's visa. I always counsel my clients that if they are to behave in a manner that might lead to cancellation of their visa they should expect no mercy from the courts. A visa is a privilege that can and should be taken away when the holder behaves in a manner that is deemed unacceptable to Australian society. We have enough problems in Australia with citizens who cause harm and injury to innocent others without allowing the importation of violent behaviour from other parts of the world. New Zealanders should respect the generous and highly partial visa arrangements given by Australia and understand that it is conditional upon their continued compliance with accepted standards.
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Tuesday, 23 August 2016
i also agree with the decision of cancellation but he has been in Australia since he was six years old we don't know why or were or if genetical circumstances are the problem or this young mans issues what ever they are he has grown up and become a adult in Australia we don't even know if his issues stem from his up bringing or if you can even relate it to his country of birth his issues could all stem from the country that he has spent the majority of his life in Australia my point is why should the country of his birth be blamed for his criminal history and the outcome of this person mentality
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Tuesday, 24 November 2015
My sentiments exactly, Robert. I too make this point perfectly clear to my clients. If their behaviour is unacceptable to Australian society, they must be prepared to accept the consequences of their actions, namely cancellation of their visa and removal from Australia.
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Friday, 08 November 2019
Dylan was forced into pleading guilty. He wanted to go to trial and tell his side of the story there were witnesses at the scene and it was caught on CCTV but both his legal aid lawyer and barristor insisted he would get a longer sentence. We were adamant he should tell what happened how he was attacked first by a person of tamil descent. Stalked and almost run off the road by this man whom btw had his family in the car. Dylan had his 2 yr old daughter in the car she'd fallen asleep. The incident occurred bcs he slowed right down to 25km as he approached a speed hump so as not to awaken her. This infuriated the driver behind him. Dylan was in fear for his life. So the story you have is not true he pled guilty bcs of the pressure from both his lawyer and barristor whom also said he'd look like a psycho if he went to trial. We have all suffered gravely bcs of this injustice. His youngest daughter is now in my full-time care her mother's life is shattered she has attempted to take her own life several times since Dylan was deported in 2015. My grandaughter is an Australian citizen my son has lived in oz since aged 6. After serving a 2yr jail sentence he'd returned to his wee family they were so happy. He had presented himself into continued counselling was working then one morning at 6am he was taken by police and immigration offices as he was preparing his lunch for work. It was horrific abs we ALL SUFFER PTSD his now ex-partner moreso. He went to Nz where he has no support no family NOTHING. In reference to family separation Scott Morrison said "oh they can always SKYE." Tony Abbott and Scott Morrisons amended s501 of the migration act isn't protecting communities but ripping Australian families apart.
The sentencing judge stated bcs Dylan was young he could be rehabilitated. The forensic psychiatrists report also stated the same. Prison officers and detention centre staff all could not believe he was in prison and being deported. The immigration system is biased. Pedophiles are allowed to have their visa's back and drug dealers too.
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It never been an easy issue for someone arrived as a minor, been living in Australia for many years being deported back to the country of origin, which s/he has little to no contact with ever since s/he left, and protection of Australia genuine public.
It is a very scary situation that one would have been beaten to the point of unconsciousness, in front of his wife and children, just because he toot his car horn.