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Immigration Daily News Lying On Incoming Passenger Card Sets Stage for Visa Cancellation!Australian Immigration Daily News
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Lying On Incoming Passenger Card Sets Stage for Visa Cancellation!
What do you think about the visa cancellation powers in the Migration Act?
Considering Australia’s origins as a “convict colony”, where people from the UK were essentially sent into what was “permanent exile” for committing criminal offences, is this a practice that we should be following today?
What if somebody has spent their entire life in Australia since early childhood?
Should they be “sent back where they came from” – even if the effect is to separate them from their family, to remove them from the only cultural setting that they have ever known, and to make them a “stranger in a strange land”?
Is a sanction by the criminal justice system punishment enough? And should there be a “second punishment”, in the form of “removal” that is imposed by the Department, outside the context of the sentencing process through the criminal law?
Suppose the person has done something that we all would agree is totally repugnant, and absolutely worthy of severe punishment, like committing a rape? And what if this rape happened after the person committed a laundry list of other crimes?
But what if that horrifying, inexcusable crime happened 20 years ago? And since that time the visa holder has not committed another crime of violence? Should the Department be able to come back, all those years later, after the person has been allowed to return to the community after serving his prison sentence, and deport the person?
Well, even though we’re just getting into the New Year, there’s been a case before the Federal Court which raises all of these questions, Maxwell v Minister for Immigration and Border Protection (2016) FCA 47 (8 February 2016).
These were the circumstances of the case: the visa holder, Raymond Wilson Maxwell, arrived in Australia in 1961 from the UK with his parents and 8 siblings. He was 4 years old at the time. So at the time that the Department cancelled his Resident Return Visa in 2015, he had lived in Australia for more than 50 years.
As in all these cases where someone who has been a long-term resident of Australia has their visa cancelled on character grounds, the natural question to ask is: “Why didn’t this person seek Australian citizenship? He could have avoided the entire problem!”.
We don’t know what the story was in Mr Maxwell’s case, or whether there ever was a viable pathway for him to Australian citizenship. The decision of the Federal Court doesn’t tell us. One might venture that given that Mr Maxwell held a Resident Return Visa that he did have permanent residency status and might have been able to apply for citizenship. We just don’t know. However, it is safe to assume that if he had been eligible to become Australian citizenship, Mr Maxwell is undoubtedly regretting at this moment that he didn’t!
That’s because his application for judicial review before the Federal Court was not successful. As I have pointed out in the various articles that I have posted, the cases reflect that people who have their visas cancelled on character grounds have a very (very!) difficult task in trying to overcome a cancellation - nearly all challenges fail!
So – getting back to Mr Maxwell’s story – what did happen here? As mentioned, he managed to compile what by any standard was a very significant criminal history prior to the rape offences in 1995. As recounted in the judgment of the Federal Court, beginning in 1980, when he would have been about 23, his record included: destroy or damage property, larceny, breaching suspended sentence, assaulting police, assault occasioning actual bodily harm and social security offences. And this was all before the rape offences!
Mr Maxwell was convicted of “two counts of rape and assault occasioning actual bodily harm” in 1995. He was sentenced in the Supreme Court of Australia to a prison sentence of seven years.
Since the 1995 conviction for rape, it appears (from the Federal Court’s judgment) that the only other offences that Mr Maxwell committed were for “traffic related (drink driving) and “street” offences, such as hindering police”.
So what was it that triggered the Minister’s (actually the Assistant Minister’s) decision to cancel the visa?
It seems like the “straw the broke the camel’s back” was that in June 2014, Mr Maxwell answered a question on an “Incoming Passenger Card” that asked whether he had any criminal convictions untruthfully, by stating “No”.
As we have seen in cases involving PIC 4020, the one thing that is just about guaranteed to bring trouble with migration issues is to lie to the Department. In fact, in my articles I have assumed the persona of the television lawyer “Perry Mason” and have said that it is of paramount importance in dealings with the Department always to “tell the truth, the whole truth, and nothing but the truth!”.
And does this case ever bring that point home, with a vengeance!!! Reading between the lines, it surely seems that if Mr Maxwell had not filled out his incoming passenger card falsely, his visa would not have been cancelled on character grounds, and he would likely be going about his business here in Australia. So, to put it mildly, it certainly seems that lying on his incoming passenger card was “A HUGE MISTAKE”!!!
Did the fact that Mr Maxwell has extremely strong family ties to Australia save his situation?
Nope!
The evidence before the Federal Court was that Mr Maxwell had a de facto partner of 10 years standing; an adult daughter; an elderly mother; nine siblings; 81 nephews and nieces; and 2 grandchildren. There was also evidence that some of these relatives would experience emotional hardship if the applicant were to be deported. It was the Assistant Minister’s view that neither these ties, nor Mr Maxwell’s longstanding ties to Australia, were insufficient, when weighed against his criminal history, to cause the Assistant Minister not to cancel the visa.
Did arguments made on behalf of Mr Maxwell that the Assistant minister had given insufficient weight to factors such as the passage of 20 years since the rape conviction without any further serious violence offences get him anywhere?
Nope!
It was the Federal Court’s opinion what weight to give the various considerations regarding the possible cancellation of the visa.
What about the argument advanced by Mr Maxwell that the Assistant minister had failed to consider the likelihood that he would commit a further serious offence was “remote”, given that 20 years had passed since the rape convictions?
It got him absolutely nowhere. The Court held that the Minister’s obligation when considering whether to cancel a visa is only to take into account “the risk of harm”. So long as the risk of harm is considered in a way that is “logical and rational”, the Minister is not required to “evaluate it in any particular way or to ascribe any particular characterization to the risk”.
So the what’s the moral of the story: If you commit a serious crime of violence while in Australia as a non-citizen, you place yourself at grave risk of visa cancellation and deportation, no matter how much time has elapsed since the offence, and no matter how strong your family ties to Australia are.
As the saying goes, a visa holder who commits a serious criminal offence may very well forfeit the privilege of remaining in Australia.
And if the Minister does cancel your visa? Good luck! Convincing the Federal Court that the Minister’s decision was infected by jurisdictional error is going to be extremely extremely difficult!
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Comments
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Saturday, 27 February 2016Permanent residents are guests?
Well ..... I agree that a resident, permanent or temporary, should be removed if a major offense is committed, however, the "guests" rhetoric is quite controversial.
Look at what the department is doing to BVE holders under the Reg 2.43(1)(p) and (q), those who even get CHARGED by an offense get thrown into detention indefinitely (even if the charge was bogus) ..... Making way for a multitude of abuse (if anyone knows a BVE holder they can throw them in jail with a wrong accusation !)..... Even charge? I saw on some other agent forums that a client on a BVE forgot to put the P plate on his car, got a $50 fine, got detained ! WHAT THE ****?
If we allow the guests rhetoric, what's next? Deport PRs who did as much as have a verbal argument with a neighbor? Most PRs are law abiding people who appreciate the chance at a new life here, have come here to settle and make Australia home. Calling them guests is - IMHO - very xenophobic -
Friday, 12 February 2016
Time for some facts and reality check.
First - we have over 2.2 million guestworkers here on a range of fake & pretext visas.
See stats at bottom.
Many pretending to be doing 8 year old 'english' or 14 year 'vet' or 'segregated special needs 'Uni' courses to get entry - or on pretext working holiday or 457 visas.
Or non NZ born sneaking in on a NZ back door visa.
A sad reality is most are here only to deliberately breach their visa, and are recruited in on fake documents and health records from their home country keen to dump their misfits & burden into Australia, and to get the remittance money they sent back to their agent or Loan racketeer that set up their pretext visa and Fake 'funds'.
These students or tourists only bring in at best $8 billion.
And send out over $36 billion (Austrac) so a massive economic loss.
They are mostly poor & unskilled.
They come in absolutely loaded up with debt in fake funds.
So a massive economic loss and social burden.
Go into these 'colleges & Institutes' where the entire class is abandoned mother Thai bar girls or Indian illegal factory or taxi or services workers.
Or in the 'universities' where the Chinese doing higher education can't even speak ELT 4 (5 year old English) and he or she pays someone to do their assignments.
Add in the fake marriage partner who can work full time & makes zero effort to hide his blackmarket or vice work as the main purpose here.
Then we have the 457 fraudsters and the fake business investor who flips the loss making corner shop to the next one in the visa syndicate racket once he has the PR.
Go see the agents and recruiters at work in the slums and rural areas overseas.
Observe the massive vice syndicates and rackets organised in Korea or Taiwan or China or Thailand with whole suburbs or regions living off their woman sent to Australia as 'students' or 'tourists' to work in vice. Or Blackmarket Indians with the whole village lined up once they get the 'anchor' person in place.
What's coming it is unskilled and only here for one reason.
To steal Aussie jobs & housing or work in the blackmarket or vice.
And fair enough we encourage it.
The employers and housing and education industry love it,
But that is destroying our standard of living.
It has eroded and reduced our wages and workplace values.
We have formation of massive unassimilated enclaves.
And tax evasion and false identities are now routine.
Facts are.
Sydney & Melbourne are now vast slums of Asian & Indian guestworkers all on this racket doss hovel housing.
Ten in a 2 bed unit, or 15 in mattress share in some small house is how they live.
Over 200,000 dwellings converted from Australian families or couples to be used by mainly Asian landlords to profiteer in blackmarket sardine guestworker housing.
Our Streets are littered with sticky tape posters advertising room, bunk and mattress share in a squalid inner city Chinese owned 2 bedroom unit hovel.
40 sq km of sydney is now ethnic slums.
1 in 6 is sydney is a temporary guestworker.
780,000 of them live in a private accomodation slum bunk or mattress share.
1 in 7 or 640,000 in Melbourne.
Same.
Our buses and trains and sidewalks literally choke with Third world rural peasants or Asian bar girls going to their blackmarket or vice jobunder an illegal name.
They step over the Australian homeless and jobless pushed out to live on the street.
10,000 Australian homeless in sydney.
600,000 unemployed Australians.
It's not aspirational international students (4% success in achieving a professional vocation)
or genuine working holiday tourists.
Or NZ born.
Or skilled 457.
They pay a clip of $1,600 course of nonsensical education 20 hour a week 25 weeks a year that has zero recognition overseas and is actually free online in their home country.
Or as a 'tourist', never once spend a dollar as a tourist and stay in the same ethnic slum enclave mattress share and work as a illegal vice or blackmarket factory worker for 2 years.
Or a Malay or Pakistani who worked for peanuts for a decade to get a 457 sponsorship and the company then does an anti Australian bias application to make sure only their candidate gets in and no Aussie can get the job. then the back room deal so the Malay or Pakistani is bound and has to pay back the company over half what he earns as payback.
Face it.
Our temporary visa program is a joke.
We are a laughing stock globally.
No other country for example advertises openly via visa agents that you can Cole to Australia and be a sex worker doing a 'student' visa.
But that's how the visa loan agent international student racket is sold globally now.
Or India - hey send off that 30 old useless unskilled Indian by borrowing $15k from an agent to get him in on a pretext, often fake papers & health checks, (50% are fake DIAC) then pay some Indian here a bribe to get him a 'sponsored PR' and a million dollars welfare benefit for life.. plus bring in the mother, then the rest of the village...
Sure but he will be working 100 hour weeks cleaning toilets and it's just not that easy.
We have set our filters to the unskilled, the gullible & exploited.
And that's what is coming in as a result.
We should scrap this whole fake 'student' and 'tourist' and NZ back door and '457' industry and just admit it's a pretence for massive large scale blackmarket & vice worker importation.
Just look at these OECD averages.
Only 40,000 of the 650,000 'working holiday' are genuine backpackers.
Remove the right to sex work and 100,000 would disappear in a week.
That's the estimate of how many Asian female 'tourists' are here for vice work.
Remove the right to any work and they will almost all disappear.
This group avoid or pay no tax yet place a huge social and infrastructure burden on Australia.
Wages would go up, housing costs down. Youth employment would recover.
Only 75,000 of the 580,000 'students' are genuine higher education.
That's the OECD average. We have 18 times the OECD average but an Australian 'education' in most categories is not worth anything overseas and free in that home country.
The stats that many 'students' are recruited in for blackmarket or vice is so overwhelming - everyday the local or Asian media reports it.
Remove the right to any work and 500,000 would leave in weeks freeing up education, employment, Housing and it cleans out the ghettos.
Only 360,000 of the 680,000 NZ are NZ born.
This visa was meant for NZ born only. Not for third world or unsuitable people who were rejected from Australia, so then use NZ as a back door entry.
None of the 200,000 457 are needed at all. None,
And we have over 85,000 overstayers & another 35,000 on special scams.
They should be found & deported with a bounty paid.
Many have been illegal for years and include many active in crime or vice.
That is say 60,000 genuine temp visas of 2.25 million currently here.
Which means at least 2 million are on some fake pretext.
If we had sensible filters and controls on our temp visa program - they would not be here.
And we would not be exploiting them as cheap labor or as vice workers.
This cleanup is long overdue.
Immigration blog
Personally, finally we have a Minister with balls. I couldn't give too hoots about the liberal party but I can always respect a man who follows through on what he believes. As far as I'm concerned and I'm sure many of Australian's would agree, when you are just a resident of this country, temporary or permanent, you are only a guest here. Break the law and commit a criminal offence and you loose that right to be a guest.
For the first time in a long time, not that I would agree with all of his decisions, I can say, good on you Minister.