Australian Immigration Daily News

There has been yet another decision from the Federal Court which illustrates that having a personal history of residence in Australia from early childhood, powerful family ties to Australia, and virtually no connection to one’s country of origin is simply not enough to insulate a person from having his/her visa cancelled on character grounds. 

This decision, from the Federal Court, Renzullo v Assistant Minister for Immigration and Border Protection (2016) FCA 412 (22 April 2016) reinforces the lesson of the decisions handed down by the Full Court earlier this year in the Stretton and Eden  cases, namely,  that challenging a visa cancellation by the Minister on character grounds on the basis that the cancellation was “legally unreasonable” is likely to be very difficult, if not virtually impossible. 

The Renzullo case also brings home the point that just because a visa cancellation decision may appear “harsh or severe” (in the eyes of the visa holder) that fact alone is insufficient to give rise to a finding of legal unreasonableness. 

Indeed, the Renzullo case appears to put to rest the prospect that visa cancellations can be effectively challenged on the basis that they were “disproportionate” and that the decision was in some sense analogous to “using a sledgehammer to crack a nut”.  Renzullo emphasizes that in order for a claim of disproportionality to have any prospect of success,  it must be possible to demonstrate that, on any view of the case,  the decision “exceeded what was necessary for the purpose it served”.  

That is a very high standard to meet, and one that is likely to be satisfied only in rare circumstances. 

So, what exactly were the circumstances in Renzullo? 

On the face of the situation, it would seem that Mr Renzullo had a nearly impossible path to overcoming the visa cancellation, due to his extensive criminal history.  That history included the following “laundry list” of criminal convictions: 

• In July 1989, when he was 21 years old, Renzullo was convicted of robber whilst armed in company and sentenced to 6 years and 2 months imprisonment;
• In 2005, he was convicted of 6 counts of indecently dealing with a child between the ages of 13 and 16 (his stepdaughter) . He was also convicted at the same time on counts of threatening to cause harm to, and threatening to kill, his step-son and ex-wife. The sexual offences led to five sentences of 2 years imprisonment and one sentence of 1 year in prison, to be served concurrently. He was sentenced to 8 months imprisonment for each of the charges involving threats against his family.
• In May 2011, he was convicted of aggravated burglary and given a suspended sentence of 18 months;
• In June 2013 and again in November 2013, he was convicted of three counts of manufacturing methyl amphetamine, with sentence of 18 months for the June convictions and 7 months for the November conviction. 

What countervailing factors were present in the case? They were these: Mr Renzullo began living in Australia in 1970, when he was 2 years old. He planned to live with his parents, who suffered from serious health problems, with his mother having dementia and his father being affected by high blood pressure, heart problems, depression and anxiety’ Mr Renzullo had strong family ties to Australia, including a sister, brother, and daughter; and he had no family in his home country, Italy, who could support him, did not speak Italian and was faced with likely difficulty in finding employment in Italy. 

It was argued before the Federal Court that the decision by the Assistant minister to cancel Mr Renzullo’s visa was “so illogical or irrational or both that no rational or logical decision-maker could have made it” – in other words, the claim was made that the cancellation was infected by what is classically known as “Wednesbury unreasonableness”. 

How far did these contentions of unreasonableness take Mr Renzullo? Not very far at all. They were rejected by Judge McKerracher, and the visa cancellation was confirmed. 

In reaching this conclusion, Justice  McKerracher started with the observation that section 501(2) of the Act gives the Minister a broad discretion to cancel a visa on character grounds, meaning that the burden of showing that the Minister has exercised the discretion “unreasonably” is high.

Justice McKerracher also adopted the reasoning in the Stretton case, where Chief Justice Alllsop had stated that concepts of “proportionality” do not empower a reviewing court to “decide for itself what is necessary and relevant for the purpose and to declare a decision beyond that assessment as unreasonable”.  Rather, Chief Justice Allsop had declared,  a court’s task is limited to determining only whether a decision-maker could reasonably have come to the conclusion. 

In other words, as Justice McKerracher observed in the Renzullo case, in matters where a decision-maker is exercising a discretionary power, such as the power to cancel a visa on character grounds, there is an area where the decision-maker has “decisional freedom”.  So long as the discretion is exercised in a way that is within the bounds of legal reasonableness, the decision will be upheld even if “reasonable minds might differ” about the outcome. 

To put it another way, just because a reviewing court may consider that a different decision was really appropriate on the evidence , that is not enough in itself to warrant intervention by the court and a finding of jurisdictional error. 

So, exactly what are the boundaries of “legal reasonableness”? 

In addressing this question Justice McKerracher referred to language in the Eden  decision of the Full Court, where it was observed that in circumstances where reasons are given for a decision, and those reasons provide an “evident and intelligible justification”  for the decision, it is highly unlikely that the decision will be considered to have been legally unreasonable.  Or again, put another way, a finding of legal unreasonableness  is likely to result only where it is not possible to understand, having regard to the stated reasons, how the decision in question was arrived at. 

Under Renzullo and the earlier decisions of the Full Court in Stretton and Eden, it will be very difficult to demonstrate jurisdictional error in a visa cancellation case if the Minister has gone through a process of weighing the factors both for and against cancellation, and has taken into account all the necessary relevant considerations.  So long as the various factors have been evaluated, the ultimate weight to be given to each of the factors lies within the realm of the decision-maker. 

Consequently, under these principles, it will be open to the Minister to determine, in any particular case, that the visa holder’s criminal history and the associated risk of harm to the Australian community outweighs countervailing factors such as the visa holder’s longstanding residence in Australia, his/her family ties, and the difficulties that the visa holder may have to deal with upon return to his/her country of origin.

So the ultimate lesson about challenging visa cancellations on character grounds: It ain't going to be easy!

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