Australian Immigration Daily News

Is there any real chance of successfully challenging a Ministerial decision to cancel a visa on character grounds? 

In view of the fact that there has been considerable attention in the media to cancellations involving people who have lived in Australia for long periods of time – for example, the article that appeared in the Sydney Morning Herald over the weekend concerning the case of Ricardo Bolvaran, and the many reports about New Zealanders having their Special Category visas cancelled –this seems like a timely and natural question to ask. 

As I have mentioned in previous posts, cases involving visa cancellations on character grounds do seem to have been one of the principal “flavours of the past year”. Many of the cases that have come before the Federal Court have involved attempts to overturn Ministerial decisions to cancel visas. 

So, while of course each individual case need to be closely examined on its own merits, the judgments that have been handed down by the Federal Court do give an indication about how likely it is that a visa holder can win her or his case.  

The pattern of these judgments from the Federal Courts does not provide much cause for optimism. 

It is my strong sense from reading these cases that a visa holder will have a very (can I add another “very”?!) difficult time persuading the Federal Court that a cancellation decision by the Minister should be overturned. 

Perhaps it could be said that a person who has had her/his visa cancelled doesn’t have “much to lose” by taking their case to the federal Court.  After all, if a person in these circumstances doesn’t seek judicial review, they will face the certainty of being, in the Orwellian phraseology of the Department, “removed” from Australia, or to call it for what it is, deported back to their country of origin.  

So, when viewed in this light, what the visa holder has to lose in such litigation, beyond of course the substance of their right to stay in Australia, is  mainly the legal costs of paying for their own lawyers to act for them, and the Minister’s/Department’s costs. 

Nonetheless, visa holders do need to be informed, very expressly, that a challenge to a cancellation decision is likely to be a “hard slog”, with very uncertain prospects, before they embark on such litigation. That is, of course, unless somehow the “green light” of jurisdictional error, I shining brightly! 

A case that was decided by the Federal Court a few months ago, in early September, Tanioria v Minister for Immigration and Border Protection (2015) FCA 965 (1 September 2015) illustrates just how hard a case like this might be.  To put it in a nutshell, a visa holder may find that the grounds for contesting the cancellation decision may be very narrow, and may amount to not much more than “grasping at straws”. 

On the face of the situation in Tanioria, one might think that the visa holder might have had some reasonable prospect for fighting the cancellation. 

The background of this case was that, like Mr Bolvaran, the person who was the subject of the recent article in the Herald, the visa holder had lived in Australia since very early childhood. He had come to Australia from Fiji with his parents in 1982, when he was only 18 months old.  

The visa holder had a 6 year old daughter with his former partner, as well as a stepson who was described as having “moderate to severe autism”. The Minister, in fact, recognized that it would be in the best interests of these children for the visa holder to remain in Australia, and for him not to have his visa cancelled. 

However, what worked against the visa holder was his history of having committed crimes of violence. 

The offence that occurred immediately before the visa cancellation involved “recklessly inflicting grievous bodily harm”.  The visa holder had been sentenced to prison for 35 months for this offence. Previously, he had committed other violent offences, one of which was an assault on his former partner which was described by the sentencing court as involving “shocking violence” and resulted in “appalling injuries”. The visa holder had been sentenced to 20 months in prison for this earlier incident. 

A noteworthy aspect of this case was that the visa holder had been given 4 prior warnings from the Department that further offending could place his visa at risk.. Two of these warnings had followed after the Department had decided not to cancel his visa. The last of these warnings, which was given less than a year before the conviction that led to the action to cancel the visa, cautioned the visa holder in express terms that any further criminal convictions that caused him to fail the character test could lead to visa cancellation. 

Ultimately, the Minister concluded that the fact that the visa holder had committed multiple violent offences and that he remained at risk of re-offending outweighed the other factors in the case, which included the best interests of his minor children, his longstanding residence in Australia and the difficulties that he would face upon being deported back to Fiji. 

So, what kinds of arguments did the visa holder put forward in the Federal Court to try to reverse the visa cancellation? 

First, he argued that the Minister had failed to take into account the nature and degree to which a decision to cancel his visa would be contrary to the best interests of his children. 

Unfortunately for the visa holder, the Federal Court determined that this claim was not supported by the facts concerning how the decision to cancel his visa had actually been made. 

The Court reviewed the Statement of Reasons that the Minister had issued detailing the basis of the visa cancellation decision. This document expressly stated that the Minister had given “primary consideration” to the best interests of the visa holder’s children.  

The visa holder tried to rely on a sentence in the Statement of Reasons which recited that the Minister had given “little weight” to the fact that it would be in the best interests of the visa holder’s “minor relatives” that he remain in Australia. However, the Court found that this reference to the “minor relatives” actually related not to the visa holder’s own children, but to his nieces and nephews. The Court also noted that the Minister had indicated in the Statement of Reasons that there was no reason to believe that the nephews and nieces did not receive adequate parental care from their parents. 

Accordingly, the Court found that there was no basis in the record for the visa holder’s assertion that the Minister had assigned only “limited weight” to the best interests of the visa holder’s children. 

A second argument that was made by the visa holder was that he should have been told by the Minister that the series of warnings that had been given to him would be taken into account in determining whether the visa should have been cancelled. 

The Court dismissed this argument practically out of hand. 

It ruled that it should have been “obvious” that evidence of the previous warnings would be considered to be significant. – especially since each of the warnings had contained a notice in bold type stating that “disregard of this warning will weigh heavily against you if your case is reconsidered”.   Thus, the Court concluded that it was not necessary for the Minister to give the visa holder further notice that the prior warnings would be weighed against him. 

Another argument that the visa holder made was that by reciting in the Statement of Reasons that the he had regard to the principle that “a non-citizen who commits a serious crime should generally forfeit the privilege of staying in Australia” the Minister had taken an irrelevant consideration into account. In other words, the visa holder argued that the Minister had improperly cancelled his visa solely due to the fact that he had been convicted of a serious crime, without having regard to any other considerations. 

The Federal Court rejected this argument as well. The Court found that the argument was simply incorrect and that the Minister had considered not just whether the visa holder had committed a crime, but also a range of other relevant matters including the best interests of the visa holder’s children. 

To sum it all up: it’s my observation that in this case the visa holder really didn’t appear to have any strong grounds for showing that the Minister’s decision to cancel his visa was invalid due to jurisdictional error. 

So it seems like what happened is that the visa holder tried out a collection of different claims, with the hope that something would “stick”. 

Unfortunately for him, nothing did. 

The result here shows that in most circumstances it will be awfully difficult to successfully challenge a visa cancellation made on character grounds. 

In a case like this, where there has been more than one crime involving serious violence, the deck is truly stacked against the visa holder. And when that is the case, having lived in Australia since very early childhood, and having children whose best interests would be served by having their parent remain in Australia may still not be enough to stave off visa cancellation. 

The case does raise a question very similar to the one in the Bolvaran case: should the visa cancellation power be exercised against someone who has lived in Australia since very early childhood, and who has virtually no connection to, and no experience living in, her or his country of origin? In such cases, isn’t the prison sentence punishment enough? Is exiling the visa holder so that she/he is in effect “a stranger in a strange land”, isolated from all that is familiar, and cut off from all family ties in Australia, appropriate? 

Apparently both sides of Federal Parliament agree that the existing visa cancellation regime is fine.

What do you think? 

Have your say in the comments section!

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