Australian Immigration Daily News

There has been another important decision from the Full Court of the Federal Court which both clarifies the scope of the Minister’s personal power to cancel a visa on character grounds, and gives further explanation of the concept of “legal unreasonableness”. 

This decision came in the case of Minister for Immigration and Border Protection v Eden (2016) FCAFC, handed down on 9 March. 

Just like the Full Court’s recent decision in Minister for Immigration and Border Protection v Stretton (2016) FCAFC 11, the decision in the Eden case illustrates that visa holders who are seeking to challenge a personal decision by the Minister to cancel a visa on the basis that the cancellation was somehow “disproportionate” in the circumstances are going to face a very (very!) difficult and uphill battle in the courts. 

Readers of this blog may recall that both the Eden and the Stretton cases were decided in the first instance by Judge Logan of the Federal Circuit Court.  In both Eden and in Stretton, Judge Logan came to the ultimate conclusion that the cancellation decisions were legally unreasonable in the sense that they were, in Judge Logan’s view, essentially “disproportionate”.  In these decisions, Judge Logan characterized the cancellation decisions as being comparable to “using a sledgehammer to crack a nut”. 

In other words, it appears that it was Judge Logan’s view in these cases that in light of the nature of the underlying criminality and the visa holder’s history in and ties to Australia, that the cancellation decision was not an appropriate sanction, was in some sense “unjust”, and went farther than was necessary in the circumstances to protect the Australian community from the risk of harm. 

In the end, what both the Eden and the Stretton cases teach us is that in cases where the Minister has exercised her/his personal powers to cancel a visa, it is not the role of the courts to engage in “merits review” of the Minister’s decision.  

So long as the Minister has taken into account the necessary “mandatory relevant considerations”  (which include the risk of harm to the Australian community, the best interests of any children who may be affected by the cancellation, whether a visa cancellation may have the consequence of the visa holder’s being kept in immigration detention for an indefinite period, and whether the cancellation would be contrary to Australia’s international obligations not to return a person to a country where they would be at risk of persecution), so long as the Minister has weighed the considerations in favour of the cancellation of the visa against the competing considerations personal to the visa holder (for example, the visa holder’s ties to Australia), and so long as the Minister’s decision is one that is “reasonably open” on the facts, the courts will not “second-guess” the Minister’s decision, or substitute their own judgment about whether a visa should have been cancelled for the Minister’s judgment on the issue. 

In short, it is simply not enough to overturn a visa cancellation decision to show that the decision was one about which “reasonable minds could disagree”.  

Rather, as stated by the Full Court in Eden,the concept of “legal unreasonableness” means that, having regard to the “terms, scope and purpose of the relevant statutory power”, the decision has the quality of being “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” or “obviously disproportionate” so that the result in the case falls “within the range of lawful outcomes”. 

So, briefly, what was the Eden case all about? 

The visa holder, “Mr Mas Eden”, was a refugee from Iran.  He originally became a citizen of New Zealand, and arrived in Australia from there, in 2007. In 2009, he was working as a cab driver in Queensland. One night, in December 2009, he picked up as a passenger a young woman (20) who was walking home after having had a few drinks with friends.  According to the facts stated in the Court’s opinion, Mr Eden made sexual advances toward the young woman which involved physical contact. He pleaded guilty to a charge of sexual assault, and was sentenced on the basis that his belief that his passenger had consented to sexual activity was “not objectively reasonable”. 

Mr Eden pleaded guilty to the offence, was convicted, and was sentenced to a term of imprisonment of 12 months, with the whole of the period of imprisonment suspended.  He was also given a “good behaviour” bond for a period of 2 years. 

Eden was sentenced in May 2011. His wife and young child joined him in Australia, and the 23 year period of the good behaviour bond apparently passed without any further offending by Mr Eden. Then, in January 2014 (more than 4 years after the offence), Mr Eden made an overseas trip.  He disclosed the criminal conviction on his incoming passenger card.  Ten months later, in November 2014, he received notice that the Minister was considering the cancellation of his visa due to the conviction for sexual assault.  Mr Eden’s visa was ultimately cancelled on 1 May 2015. 

It is interesting to note that the Full Court held that it was proper for the Federal Circuit Court to take into account the long period of “delay” between the sentencing (in 2011) and the visa cancellation (in 2015) in assessing whether the cancellation decision was proper.  The Full Court held that the delay was relevant in two respects: first, the passage of time was relevant to the question of whether the Minister had correctly found that Mr Eden’s continued presence in Australia posed a risk of harm to the Australian community.  And secondly, it was relevant to the assessment of the degree of hardship that Mr Eden and his family would suffer if his visa were to be cancelled. 

Ultimately, however, the delays that had occurred between the time that Mr Eden had been sentenced and the cancellation of his visa was not determinative in his case.  What mattered was that, in deciding whether to cancel the visa, the Minister had made findings that while the risk that Mr Eden might re-offend could be considered to be “low”, the harm that could be suffered by the Australian community if he were to re-offend would be significant.  Thus, the Full Court found that the Minister’s conclusion that Mr Eden’s continued presence in Australia posed an unacceptable risk of harm was one that, although not one that might be accepted universally by everyone who considered the case, was a conclusion that was open on the facts. 

To put it another way, in the view of the Full Court, the Minister’s conclusion that Mr Eden’s continued presence in Australia was one that was not “in any sense “unreasonable, illogical or irrational”. 

Likewise, the Full Court found that it was reasonably open to the Minister on the facts of the case to reach a conclusion that the cancellation of the visa was necessary for the protection of the Australian community, and was therefore not a “disproportionate” response to the criminal conduct that had prompted the cancellation.  Equally, the Full Court found that it was open on the facts for the minister to find that the risk to the Australian community outweighed the “mitigating” factors that were “personal” to Mr Eden, such as his family’s ties to Australia, and the degree of hardship that Mr Eden might experience upon being returned to New Zealand. 

The decision of the Full Federal Court concludes with the following observations: 

• “…… the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review” ; and
• “in the case of decisions made by the Minister personally, intervention on the grounds of legal unreasonableness would be fairly rare and would only occur in relatively clear cases”. 

The message from Eden and Stretton is therefore that overturning a decision by the Minister to cancel a visa on the grounds that the cancellation was legally unreasonable is going to be a difficult task. It will not be enough to show that “reasonable minds could disagree” about whether the cancellation was an appropriate action in a particular case. All that is needed is that the findings upon which the Minister arrives at the decision be ones that are reasonably open to be made on the evidence in the case.

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