Australian Immigration Daily News

Is the visa cancellation regime under the Migration Act too harsh? 

Does it effectively impose “double punishment” on offenders by making them subject to removal from Australia in addition to whatever sentence of imprisonment they receive? 

Should someone who has committed an offence spend a longer time in immigration detention – where they have lost their liberty as effectively as if they were in prison serving a custodial sentence – for a longer period of time than they have been incarcerated for the original offence?  

Should a person be released from immigration detention pending a challenge to a visa cancellation decision?  If the cancellation is ultimately overturned, won’t they have wrongly been held in detention? 

Should be there greater access to “merits review” of a decision made personally by the Minister to refuse to revoke a cancellation decision? On the current and foreseeable state of the law, the prospects for anyone’s being able to challenge successfully a decision not to revoke the cancellation of a visa on the grounds of jurisdictional error amount to “Buckley’s”, zero and none. 

Should the Department and/or the Minister really effectively act as the “prosecutor, judge and jury” when it comes to cancellation decisions? 

If the underlying offence is only one against “property”, rather than one occasioning harm to a person, should it be grounds for cancellation nonetheless? 

Should sentencing courts be made aware of the visa cancellation provisions of the Act so that they will be fully aware of the full range of possible consequences of their sentencing decisions, and that the imposition of a sentence of imprisonment of 12 months or more on a non-citizen is highly likely to lead to the cancellation of the offender’s visa, and the consequent removal of the person from Australia? 

And should New Zealand citizens who are present in Australia on Special Category visas and who have strong ties to Australia be subject to cancellation and removal? 

(Does anyone know if NZ has comparable provisions in its migration legislation that would affect Australians living in New Zealand?) 

Lastly, should there be a scheme of legal aid to assist a person who is facing visa cancellation? 

All of these questions are raised by yet another case that was before the Federal Court, and which was decided late last week: Tusitala v Assistant Minister for Immigration and Border Protection (2016) FCA 845 (28 July 2016). 

The factual background of this case was as follows:  The visa holder originally arrived in Australia in 2003 when he was 9 years old.  After his original arrival in Australia in 2003, there were periods of time up until 2012 when he was absent from Australia.  However, from the time he turned 18, in 2012, until the time his case was before the Federal Court, he remained in Australia. 

The criminal offences that led to the cancellation of his visa involved breaking and entering, attempting to break and enter and receiving stolen property.  For these offences, he was sentenced to a total of 14 months in prison, with a non-parole period of 9 months. 

Shortly after the visa holder was convicted and sent to prison, a delegate of the Minister cancelled his visa under the mandatory cancellation provisions of section 501(3A) of the Act, on the basis that he had a substantial criminal record (having been sentenced to prison for a period more than a year) and that he was serving a full time custodial sentence. The conviction was recorded on 5 November 2014, and the cancellation decision was made on 15 December 2014.  

The visa holder was released on parole on 20 December 2014 (reading between the lines he was apparently incarcerated and served his sentence during the period between his arrest for the offence and his conviction). 

He was taken into immigration immediately upon his release on parole, and apparently remained in detention while his request to have the cancellation revoked, and while his challenge to the decision of the Assistant Minister not to revoke the cancellation of his visa was before the courts.  So the visa holder was effectively in detention from December 2014 – July 2016, considerably longer than his original sentence (one could potentially observe that is was always open to the visa holder to request that he be removed from Australia and to contest the refusal to revoke from offshore, back in New Zealand). 

The visa holder in this case had two very young daughters, one of whom was one year old and the other only 2 months old. The situation was that his partner, an Australian citizen, was unlikely to relocate to New Zealand in the event of the visa holder’s removal from Australia.  Thus, the Assistant Minister, considering his request for revocation of the cancellation, did accept that cancellation of the visa (and consequent separation of the family) would be contrary to the best interests of the two young children. 

Nonetheless, it was the Assistant minister’s view that the visa holder represented an unacceptable risk of harm to the Australian community, and that this risk outweighed the best interests of the visa holder’s children.  Apparently, factoring into the Assistant Minister’s decision not to revoke the cancellation of the visa were concerns arising from allegations about the visa holder’s conduct while in immigration detention that “suggested a lack of respect for authority” and caused her to doubt the visa holder’s progress toward rehabilitation – even though the visa holder had not been charged in relation to this conduct. 

When the visa holder’s challenge to the decision not to revoke the cancellation came before the Federal Court, he did not have the benefit of legal representation.  And the visa holder’s application quickly went down in flames: the Court was satisfied that the Assistant Minister had properly considered the competing considerations (including the best interests of his young children and the risk of harm to the Australian community), and found that there had been no jurisdictional error.  So the decision not to revoke the cancellation was not quashed. 

An interesting aspect of this case is that the visa holder was evidently remorseful for his conduct: in his representations seeking the revocation of the cancellation, he had said that: 

“I would like to give back to the Australian community in a way I can pay back the community for my previous wrongdoings”. 

However, neither this representation, nor the fact that it was indisputably against the best interests of the visa holder’s children for his visa to be cancelled was sufficient to rescue his position or to enable him to remain lawfully in Australia. 

And evidently that time-worn saying that Australia is “the land of the second chance” was of no assistance to the visa holder either ( of course not of any legal significance but nonetheless a supposed shared "social norm"). 

What do you think – is this the kind of outcome that is desirable? Or is the sanction of imprisonment imposed by the criminal justice system sufficient?

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