Australian Immigration Daily News

Should there be some form of “merits review” of decisions made personally by the Minister to cancel a person’s visa on character grounds? 

Should someone who has spent most of their life living in Australia as the holder of a permanent residency visa but has not, for whatever reason, obtained Australian citizenship, be subject to visa cancellation and consequent “removal”? 

What if the visa cancellation will have very negative impacts on the visa holder’s family? 

Suppose the visa holder has been sentenced to a term of imprisonment for a period greater than 12 months, but the sentencing court has seen fit to suspend the prison sentence? 

In that circumstance should it still be concluded that the person “fails the character test”? 

What if the person does not commit a further offence, and the Minister does not cancel the person’s visa for a period of nearly 4 years after the conviction giving rise to the visa cancellation. Is that right? 

And what if the person originally entered Australia as a refugee? Should such a person be subject to visa cancellation and removed to their country of origin? 

What a tangled knot these questions be!!!! 

And they were all presented in the case of Hyunh v Minister for Immigration and Border Protection (2016) FCA 314 that was decided by Judge Barker of the Federal Court on 13 April. 

As we have seen in the recent decisions of the Full Court in the Stretton  and Eden cases,  it is really (really!) difficult to challenge a decision of the Minister to cancel a visa on the grounds that it was “legally unreasonable”.  

Surely, these cases illustrate that the doctrine of legal reasonableness does not leave it open to the courts to form a judgment as to whether a visa cancellation decision was “necessary for the purpose” of protecting the Australian community from the risk of harm if the visa holder should re-offend.  

Rather, as shown in Stretton, the question before the courts is whether the decisionmaker could “reasonably” come to the conclusion that the visa should be cancelled in a particular case. Did the Minister give “genuine”  consideration to all relevant factors? 

If the Minister did do, then getting the decision overturned in the Federal Court will almost surely be an insurmountable challenge, almost worse than trying to push a huge boulder up a steep hill! 

As Judge Barker observed in Hyunh, just because a visa cancellation decision might be regarded by  some observers as “unfair and unreasonable in a broader humanitarian or policy context”  does not make it “legally unreasonably” and does not mean that it was not reasonably open to the Minister to cancel the visa. 

So, in light of this succession of cases -  Stretton, Eden and now Hyunh, it really looks like trying to fight a visa cancellation on the basis that it was “disproportionate” likely has the proverbial “Buckley’s” chance of succeeding in Federal Court! 

Exactly what were the circumstances in Hyunh’s  case that led to the visa cancellation? 

As recounted in the Court’s decision. They were as follows: 

Mr Hyunh originally arrived in Australia from Australia in 1992 on a Refugee Visa, as a dependent of his aunt. He was 16 years old at the time. During the period between 1994 and 2000, he was convicted of a number of dishonesty, diving and drug-related offences. In November 1998, he was given a warning that he was liable to deportation due to his criminal history.  

Mr Hyunh moved from NSW to Perth in 2001, apparently, as noted in the court’s decision, “to extricate himself from crime and drugs”. While there, he formed a relationship with his partner, with whom he had three daughters. The eldest of these daughters was born with severe intellectual and physical disabilities. 

In December 2002,  Mr Hyunh’s visa was cancelled by the then-Minister on character grounds. That cancellation was first overturned in the Federal Magistrates Court, but the decision of the FMC was then overturned on appeal  by the Full Court.  Then, in August 2007, the Minister exercised discretion under section 195A of the Act and granted Mr Hyunh another Resident Return Visa. 

There was evidence before the Minister that after Mr Hyunh had been granted the further visa in 2007, he was convicted of further dishonesty and driving offences. 

Mr Hyunh had been the major caregiver for his eldest daughter, who had severe disabilities. This daughter died in 2010, at the age of 6. 

Again according to the court’s decision, Mr Hyunh apparently relapsed into heroin use after the death of this daughter. 

Then, in December 2010, he was charged with robbing a disabled man with a weapon.  He pleaded guilty to this offence, and, a year later, in December 2011, he was convicted and sentenced for the offence.  The sentence was for a term of imprisonment of 2 years, which was suspended for a period of 12 months. 

Apparently, there was no further re-offending by Mr Hyunh. 

Nonetheless, almost 4 years after the conviction, in October 2015, a different Minister decided to again cancel Mr Hyunh’s visa. 

There was material before the Minister in the Departmental submission that Mr Hyunh lived with his two younger children (born in 2007 and 2012); that if his visa were to be cancelled, Mr Hyunh’s partner and the children would not accompany him back to Vietnam, and that the visa cancellation would thus have the likely result of causing a breakdown of the family unit; that the family relied on Mr Hyunh for financial support;  and that Mr Hyunh did not speak fluent Vietnamese and was therefore likely to face difficulties in gaining employment, at least in the short-term. 

Ultimately, the Minister determined that the most recent offence that Mr Hyunh had committed, robbing the disabled person, was a serious offence, and that great harm could result to the Australian community if he were to re-offend.  

The Minister concluded that the risk of harm to the Australian community outweighed the countervailing factors in the case, namely that cancellation of his visa would be contrary to the best interests of his children, his longstanding residence and ties to Australia, and the negative impact that the cancellation would have on his family. 

In the end, Judge Barker found that while the Minister had faced a difficult decision in determining whether to cancel Mr Hyunh’s visa (a second time), he had, properly, taken into account  and had balanced all the factors both supporting and against the visa cancellation.  The Minister had decided that the interest in protecting the Australian community against the risk of harm outweighed the mitigating factors in the case.  

And since the Minister had given “genuine” consideration to the competing factors, Judge Barker held that the decision to cancel the visa was within the “area of genuinely free discretion” available to the Minister, and was thus, not “legally unreasonable”.  Consequently, Judge Barker declined to overturn the Minister’s decision. 

So, what do you think of all of this? Are the personal powers of the Minister to cancel visas too great? Should there be greater oversight of the Minister’s decisions, in the form of merits review?  Is visa cancellation in effect a “second form of punishment”? If visa cancellation was appropriate in this case, why was it delayed for nearly 4 years from the time of the conviction, when Mr Hyunh was presumably at liberty in the community? Should it have mattered that there was apparently no further offending on Mr Hyunh’s part after the conviction that gave rise to the visa cancellation? 

The comments section below is available for you to state your views!

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