Australian Immigration Daily News

Imagine for a moment that you have received a phone call asking for assistance from a New Zealand citizen who is present in Australia on a Special Category visa. 

The person tells you that he has had his visa cancelled under the mandatory visa cancellation provisions of section 501(3A) of the Act because he has been convicted of sexually based charges involving a child, specifically, downloading child pornography from the Internet (in legalistic terms, accessing the material through the use of a “carriage service” as defined by the Telecommunications Act 1997.   

The person also tells you that he has made representations to the minister requesting that the visa cancellation decision made by one of the Minister’s delegate, but the Minister has refused to revoke the visa cancellation. 

The person also tells you about his personal circumstances, namely, that he has lived in Australia for 35 years and that there are other circumstances which he believes may help his case: namely that he has serious health issues, and that his daughters and grandchildren would be distressed if he were forced to return to New Zealand. 

How would you assess the person’s prospects for successfully challenging the visa cancellation? 

In light of the many cases that we have seen, especially the recent decisions from the Full Court in Stretton and in Eden that illustrate how hard it is to contest a cancellation on the basis that it was “disproportionate” or “harsh”, would you judge the prospects to be anything other than “poor” or“terrible”? 

And suppose that in the process of reviewing the matter you became aware that the Minister had signed a Statement of Reasons for his decision not to revoke the visa cancellation in which the Minister had specifically found that even though there was a low risk that the visa holder might re-offend, that “the Australian community could be exposed to great harm should (the visa holder) re-offend in a similar manner”. 

And further, suppose you knew that a conclusion drawn by the Minister that the Australian community regards child pornography offending as “abhorrent”? 

Well, just such a case came before Acting Chief Justice North and was decided on 10 May 2016: Dunn v Minister for Immigration and Border Protection (2016) FCA 489.

The outcome in this case might come as a surprise, given the background that is outlined above:  Acting Chief Justice North concluded that the Minister’s decision not to revoke the visa cancellation was infected by jurisdictional error, and should therefore be “quashed”. 

So, exactly how did the Minister’s decision making process go astray in this case? 

The difficulty, so far as Acting Chief Justice North was concerned, lay in the Minister’s fact finding process, particularly with the finding that there was a risk of harm to the Australian community if the visa holder were to re-offend and again download child pornography from the Internet.  In order to arrive at that conclusion, the Minister had determined that there was a danger that Australian children might be used in the production of child pornography images.

What did the Court find wrong with that conclusion? 

Isn’t it blindingly obvious that there is a risk that Australian children are at risk of being used to produce child pornography, just like children all over the world, and isn’t it equally obvious that if they are exploited in this way that they will suffer grave and irreparable harm? 

The difficulty, insofar as Acting Chief Justice North was concerned, was that there was no evidence referred to in the Minister’s reasons that Australian children are or would be used in making child pornography. Consequently, Acting Chief Justice North found that there was no basis, on the material before the Minister as reflected by the contents of the Minister’s Statement of Reasons, that the Australian community would be at risk of harm if the visa holder were to re-offend. 

In this case, a submission that was advanced on behalf of the Minister that it should be “inferred” that Australian children may be harmed if the applicant were to re-offend was rejected by the Court, for the reason that there was no fact found by the Minister (in the Statement of Reasons) to support such an inference. 

The Court also rejected a submission that the Minister had referred in his Statement of Reasons to a risk that if the visa holder were to re-offend, it could result in psychological or other harm to young persons in the Australian community if they were exposed to such material.  The reason that this submission was rejected was, again, that the Minister had made no reference in the Statement of Reasons to a risk that children might be harmed by viewing the material. 

So, in essence, what happened in this case was that the Court found that the Minister had based his decision not to revoke the cancellation of the visa on a factual finding for which there was no support in the Statement of Reasons.  In other words, the essential finding that there was a risk of harm to the Australian community was determined not to have an evidentiary basis. 

One might surmise that if the Minister were to re-visit this issue, and were to find that there is evidence that Australian children have been used in the production of child pornography images, or have suffered harm as a result of being exposed to such imagery, and the Minister were to make specific reference to that evidence in the Statement of Reasons as support for a conclusion that the Australian community would be at risk of harm if the offence of downloading child pornography from the Internet were to be repeated, then a very different outcome would have resulted in this case. 

The moral of this case is that if there is not specific evidence in the text of a Statement of Reasons for a particular factual finding that is relied on by the Minister to support a visa cancellation on character grounds, then the cancellation decision may be vulnerable to legal challenge. 

What do you think about what happened in this case? The comments section is available for you to chime in with your opinions!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.