Australian Immigration Daily News

Is it utterly futile to try to overturn a decision made personally by the Minister to cancel a person’s visa on character grounds? 

If you have been following the discussion of visa cancellation cases on this blog, that may certainly appear to be the case. 

For a short time, it seemed that a small window might be opening through the decisions of Judge Logan of the Federal Court in the Eden and Stretton cases.   In each of those cases, Justice Logan had essentially concluded that the exercise of the visa cancellation power was legally unreasonable when it was “disproportionate”, or, in His Honour’s “pithy phrase”, when the visa cancellation power was used in a way that was analogous to using a sledgehammer to crack a note.

However, the suggestion that some doctrine of “proportionality” might be emerging as a basis for challenging visa cancellations was itself basically smashed like a nut by the decisions of the Full Court in Eden and in Stretton earlier this year.  In both those cases, the Full Court overturned Justice Logan. 

What the Full Court said in Eden and Stretton was that in reviewing a visa cancellation made personally by the Minister, the reviewing court must be scrupulous not to engage in any form of “merits review”.

The Full Court held that it is not the place of the courts to substitute their judgment for that of the Minister in determining whether a visa should have been cancelled on character grounds. 

Rather, the Full Court decisions in Eden and in Stretton tell us that the role of the reviewing court is only to assess whether the Minister’s decision was lawfully made.  Therefore, if the Minister has taken into account so-called “mandatory considerations”, such as the risk of harm to the Australian community, the best interests of any children affected by the cancellation decision, and whether the legal or practical effect of the decision would be that the visa holder would be held in immigration detention for an indefinite period of time, then, in that circumstance, the cancellation decision will be upheld. 

And that is the case even if the cancellation decision may seem “harsh” in its operation (for example if the visa holder has lived in Australia for many years and has strong family ties here) or whether it is the case that “reasonable minds may differ” as to whether a person’s visa should have been cancelled. 

So, in the wake of Eden and Stretton, it is true that the task in seeking to get a visa cancellation decision set aside, or “quashed”, is really looking like a very uphill battle. 

Having said that, it is important to take note of a decision that was handed down by Justice Tracey on 9 June 2016 in the case of Graham v Minister for Immigration and Border Protection (2016) FCA 682. 

This case does point to another, perhaps narrow, window through which visa cancellations on character grounds might be challenged. 

On the face of the situation, it would certainly seem that the visa holder had a difficult challenge! 

According to the Court’s decision, the visa holder, Mr Graham, had arrived in Australia from New Zealand in 1976, at the age of 10. In 2009, he was convicted of 3 counts of assault, for which he was sentenced to prison for 15 months.  Although a delegate of the Minister considered whether to cancel Mr Graham’s visa in 2011 following those convictions, the delegate decided not to proceed with the cancellation. 

However, although Mr Graham’s visa was not cancelled in 2011, he was warned that further criminal offending could result in his visa being cancelled. 

And as it turned out, after being warned, Mr Graham did apparently commit various further offences (as reported in the Court’s judgment) including for such things as common assault, drive motor vehicle while having an illicit drug present in his blood, using abusive language to a police officer, etc.  Again, apparently none of these further convictions led to a further sentence of imprisonment of 12 months or more.

So what did prompt the cancellation decision that was the subject of this court case? 

Apparently it was the amendments to the Migration Act that were enacted in December 2014. 

These amendments provide that a person does not pass the character test if the Minister reasonably suspects that the person is or has been a member of a group or organization that has been involved in criminal conduct. 

The problem for Mr Graham was that information was provided to the Minister that Mr Graham had been the president of a chapter of the Rebels Motor Cycle Club, and that information was also provided that outlaw motor cycle gangs have engaged in criminal activity. 

So was Mr Graham’s “goose cooked” in this case?  And if not, what saved him? 

The Minister proceeded in this case under section 501(3) of the Act.  Under this provision, rules of natural justice do not apply, and the Minister may cancel a person’s visa without giving notice to the person that cancellation of the visa is being considered and without providing an opportunity for the person to make representations concerning the cancellation decision.  

The procedural safeguard under the 501(3) scheme is that after  the cancellation decision is made, the visa holder is notified of the decision and is given the opportunity to make representations to the Minister giving reasons why the decision to cancel the visa should be revoked.  If, after receiving those representations, the Minister is satisfied that the visa holder satisfies the character test, then the visa cancellation may be revoked. 

Ok, this is what saved Mr Graham’s visa, at least for the time being:  because Mr Graham had a substantial criminal record, as a result of his being sentenced to 15 months imprisonment for the assault convictions in 2009, there was no way that he could ever pass the character test.  

It would have been totally futile for him to make representations that the cancellation should be revoked, because, as a result of his criminal record, he simply could never satisfy the Minister that he passed the character test. 

So, the fault in this cancellation case was that the Minister had proceeded with the cancellation decision based on the premise that he had the power to revoke the cancellation after it was made. The minister had apparently been advised that he had the power to revoke. And no mention was made in the statement of reasons for the cancellation that the cancellation decision could not be revoked, because the visa holder was incapable of ever satisfying the character test. 

It may all sound a little (0r a lot) complicated and “arcane”! 

To put it another way, the Court found that the Minister’s decision in this case was infected with error because the Minister had proceeded with the initial cancellation on the assumption that there was a power to revoke the cancellation, when in fact no such power existed. 

So, the moral of this case is that while it is very hard to overturn the cancellation of s visa on character grounds, a basis for challenging the decision might possibly be discovered in the very fine nuances of the law!

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