Australian Immigration Daily News

The mountain just got a whole lot higher for anyone who may be seeking to challenge a decision by the Minister to cancel a visa on character grounds. 

As I have discussed on this blog, there have been very few cases where a visa holder has been successful in persuading the Federal Court to set aside a cancellation decision.  

And now, just yesterday, the Full Court of the Federal Court has reversed a Federal Court decision in favour of the visa holder: Minister for Immigration and Border Protection v Stretton (2016) FCAFC 11 (15 February 2016). 

As readers of this blog may recall, in June of 2015, Judge Logan of the Federal Court in Queensland had handed down a judgment which quashed a decision by the Minister to cancel Mr Stretton’s visa.  In that decision, Judge Logan had described the Minister’s action as being equivalent to “using a sledgehammer to crack a nut”. 

In other words, it was Judge Logan’s view that the Minister’s action was “legally unreasonable” in the sense that the cancellation of the visa was somehow “disproportionate” to the underlying criminality and risk of harm to Australian society. 

The decision of the Full Court in Stretton’s case indicates that arguments about whether the sanction of visa cancellation and consequent removal from Australia are “disproportionate” are not likely to get very far at all in future cases.  It seems clearer than ever from this decision that the courts are simply not going to delve into the question of whether the Minister’s decision to cancel a visa in a particular case was “right or wrong”, or whether the Minister gave appropriate weight to countervailing “mitigating circumstances” before proceeding with a decision to cancel a visa. 

In other words, the decision of the Full Court signals very clearly that the courts will limit their review of the Minister’s visa cancellation decisions to a consideration of whether that decision was made lawfully – in other words, whether mandatory relevant considerations such as the likelihood of risk of harm to the Australian community was taken into account, whether the decision was one that was one that was within the Minister’s lawful authority to make, and whether the decision was “legally reasonable” in the sense defined by the High Court in the case of Minister for Immigration and Citizenship v Li (2013) HCA 18 (it should be noted that in Li, the plurality of the High Court held that the this legal standard of “reasonableness”  is not limited to whether a decision is “bizarre” or “one that is so unreasonable that no reasonable person could have arrived at it”, but rather that the test of reasonableness is whether the decision was one that was consistent with the “true construction of the relevant statute”). 

To put it another way, in looking at whether a visa cancellation decision was “legally reasonable”, the courts will not engage in merits review, and they will not substitute their views as to how the decision should have been made for that of the decision-maker. 

Let’s take a look back at the facts of the Stretton case so we can more fully understand the decision. 

As readers may recall, Mr Stretton migrated to Australia from England with his family in 1961, when he was about 7 years old. He was found guilty of some minor offences during the period between 1970 – 1974 (when he was aged about 16 to 20). He got married in 1975, and he and his wife had 4 children.  

It was not until 2009 that he committed the offences that led to the cancellation of his visa.  These were sexual offences that he committed in relation to his granddaughter, and involved three counts of “indecent treatment of a child under 12 years of lineal descent”.  Mr Stretton was sentenced to a term of imprisonment of 2 years, with the custodial term to end after 6 months and Mr Stretton to be subject thereafter to a “good behaviour bond” for 2 years. 

In making the decision to cancel Mr Stretton’s visa, the Minister took account of the seriousness of the offences, the circumstances in which they had occurred, and the remarks of the sentencing judge. The Minister concluded that even if there was a low risk that Mr Stretton might re-offend, “serious harm could result to a member of the Australian community if he were to do so”.  The Minister also considered mitigating factors, including the fact that Mr Stretton’s ties to the Australian community were “wide and deep” (obviously as a result of his longstanding residence in Australia).  

Ultimately, the Minister decided that the risk of harm to the Australian community if Mr Stretton were to re-offend outweighed the countervailing considerations in the case (including the fact that Mr Stretton had lived in Australia for 48 years before committing the offences, that he would face “impediments” on his return to the United Kingdom, and that the strong family relationships he had formed in Australia would be “fragmented” upon his removal. 

It was Judge Logan’s conclusion, in his decision in the Federal Circuit Court, that the Minister’s decision to cancel Mr Stretton’s visa was “in excess of what…was necessary for the purpose served” and that  it had therefore been analogous to using “a sledgehammer to crack a nut”.  Judge Logan observed, with obvious sympathy for the effects that the visa cancellation would have on Mr Stretton, that cancellation of his visa would: 

“….cast him adrift in his advancing years in a foreign land and remove him from the regular society of those of his children , each Australian citizens, who wished to continue association with him”. 

It was also Judge Logan’s view that: 

“There was no need to deport Mr Stretton in order to protect the victim or her siblings, for though they lived in Australia, her and her mother remained estranged from him….” And “The risk of harm to others was low”. 

The Full Court did not accept that the bases upon which Judge Logan had relied to overturn the Minister’s decision to cancel the visa had been correct. 

For one thing, the Full Court rejected Judge Logan’s conclusion that the Minister had “put to one side” (in other words, that he had “disregarded”) the evaluation of the mitigating factors in the case, and had not properly weighed them against the countervailing factor that the risk that Mr Stretton might re-offend was considered to be “low”.  The Full Court found that, as a matter of fact, and as reflected in the Minister’s Statement of Reasons, that the Minister had actually weighed the competing considerations and that it was “reasonably open” to the Minister, after weighing these considerations, that the visa should be cancelled. 

The Full Court also determined that it had not been a proper approach for Judge Logan to evaluate whether the cancellation of the visa was in “excess of what was necessary” for the Minister to achieve the purposes of protecting the Australian community.  In essence, what the Full Court held was that it was not for Judge Logan to substitute his own determination of what the proper outcome in the case should be for that of the Minister.  And indeed, the Full Court observed that the Minister’s visa cancellation power is not “constrained” or limited by whether the cancellation of a visa is “necessary” to achieve the purpose of protecting the Australian community (inasmuch as there is no language in the Migration Act so qualifying the Minister’s visa cancellation power. 

So, what are the main “takeaways” from this very important decision:  First, with all due apologies to Gilbert and Sullivan, the courts are simply not going to engage in a “merits review” of the Minister’s decisions, and thus they will not be looking into whether “the punishment fits the crime”, or whether visa cancellation is a “proportionate” response to the underlying criminal offence and to the protection of the Australian community from the risk of harm. 

Thus, the ultimate determination as to whether a visa ought to be cancelled is one that is going to be left to the Minister’s discretion.  

The decision  reinforces the concept that the review of visa cancellation decisions by the Minister will be limited  to whether the Minister weighed the competing factors in favour of and against the cancellation of the visa, and whether the cancellation decision was “reasonably open” on the facts (not “bizarre” or  “irrational”).

 A further takeaway is that contesting a cancellation decision is likely going to be very very difficult in almost every case.

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