Australian Immigration Daily News

Whether you agree with it or not, the cancellation of visas on character grounds certainly seems to have become a real “cottage industry” of the Department. 

There certainly does seem to be a significant number of cases coming before the Federal courts involving such cancellations!! 

And a case that was decided last Friday, 12 August 2016, illustrates yet again that once the wheels have been set in motion to cancel a visa on character grounds, good luck trying to stop the process.  That seems to be the case even if the visa holder is a longstanding resident of Australia and even if the criminal convictions prompting the cancellation occurred many years before the cancellation decision was made. 

Really, it seems like fighting a visa cancellation on character grounds has all the prospects for success of stopping a runaway freight train. 

Should it be? Is the visa cancellation framework fair? Is it just? Is it right? 

The recent case – Parker v Minister for Immigration and Border Protection (2016) FCA 938 – perhaps provides “food for thought”.  

This was the background: 

Like a number of other people who have had their visas cancelled, the visa holder in this case (Mr Tammie Parker) is a New Zealand citizen who had lived in Australia since early childhood (in Mr Parker’s case, since infancy).  At the time his case came before the Federal Court, he was in his mid-30’s. 

The criminal convictions that caused Mr Parker to fail the character test were recorded in September 2010, in the Local Court of New South Wales.  The offences of which Mr Parker was convicted included: 

• demanding property with menaces with intent to steal;
• being armed with intent to commit an indictable offence; and
• threatening a person with intent to influence a witness. 

Mr Parker was sentenced to imprisonment for 13 months for each of these charges, with the sentences to be served concurrently. 

The Department did not, however, see fit in the immediate aftermath of these convictions to cancel           Mr Parker’s visa.  After initially sending him notice, in November 2013 (more than 3 years after the convictions) that his visa was liable to cancellation, the Department subsequently, in February 2014, wrote to him to advise him that his visa would not be cancelled.  However, in that same letter, the Department gave Mr Parker a warning that if he committed further offences, cancellation of his visa would be considered again. 

Then, within a few months after Mr Parker acknowledged receiving the warning from the Department, he was convicted of another offence.  This conviction involved an offence of possessing a prohibited weapon without a permit – namely, a can of “pepper spray”.  Mr Parker was convicted of this offence in his absence.

It was Mr Parker’s claim during a Departmental interview that the can of pepper spray actually belonged to his wife, that he had bought the pepper spray for his wife’s protection, and that he had not told the police that the pepper spray was actually his wife’s because he “didn’t want her to get into trouble”. 

Mr Parker was sentenced (again in a Local Court in NSW) to pay a fine of $700 for the offence involving the pepper spray. 

But it was this conviction that prompted the Minister to re-consider his case, and, the second time around, to cancel Mr Parker’s visa due to the original offences of which he had been convicted in September 2010. 

In other words, at first instance the Department did not decide to cancel Mr Parker’s visa on the basis of the 2010 convictions, even though, on their face, the offences appear to be of a “serious” nature.  It was only after he was given a warning after these offences, and then convicted in his absence of possessing the can of pepper spray, that the Minister decided to cancel his visa. 

The ironic element of this case is that after Mr Parker’s visa was cancelled and he was taken into immigration detention, he applied to the Local Court to have his conviction for possessing the pepper spray to be annulled. That application for annulment of the conviction was granted, and at the time that Mr Parker’s challenge to the Minister’s cancellation decision was heard in the Federal Court, the case was awaiting trial in the NSW Local Court. 

So what arguments were made on behalf of Mr Parker in support of his application to have the Minister’s decision to cancel his visa quashed? 

It was put to the Court that in taking into account the conviction involving possession of the pepper spray, the Minister had had regard to an irrelevant consideration.  This submission was premised on subsection 501(10) of the Act, which provides that a conviction that has been “nullified” is to be disregarded for the purposes of determining whether a person satisfies the character test. 

The Federal Court found two main problems with this submission. 

First, the conviction had not been annulled at the time that the minister decided to cancel Mr Parker’s visa. So the Minister was therefore not prevented by section 501(10) from taking that conviction into account. 

Secondly, the record made concerning the Minister’s decision established that the Minister had not had regard to the pepper spray conviction when determining whether Mr Parker failed to satisfy the character test.  The Minister had regard to this conviction only when considering whether to exercise the discretion to cancel the visa.  And the Court, relying on the authority of a previous case (Ngaronoa v Minister) found that under the legislative scheme, it is open to the Minister to consider an annulled conviction when determining whether to exercise discretion to cancel a visa (even if that same annulled conviction can’t be considered for the purposes of determining that the visa holder fails to satisfy the character test!). 

Another submission made on behalf of Mr Parker was that the cancellation decision was so unreasonable that no reasonable decision maker would have made it – in other words, that the cancellation was “infected by” Wednesbury unreasonableness.  

This submission, too, was rejected. 

The Court concluded that there was nothing unreasonable in the Minister’s having regard to the pepper spray conviction when deciding whether to cancel the visa, because at the time that the Minister made his decision, that conviction had not yet been annulled.  In the Court’s view, it was not unreasonable for the Minister to “make a decision on the evidence before him”.   And the evidence before the Minister at the time of the cancellation decision did not include any indication that the pepper spray conviction had been annulled.   

So in the end, the Court affirmed the Minister’s decision to cancel Mr Parker’s visa. 

At the same time, does it strike you at all that there might be something slightly “out of balance” in this outcome? 

Effectively, what happened here is that Mr Parker’s visa was cancelled due to a chain of events that started with his being convicted of an offence in his absence. At the time that his case was before the Federal Court, that conviction had been annulled and a new trial had not yet been convicted to determine whether Mr Parker was in fact guilty of the offence.  

What if Mr Parker were ultimately to be acquitted? What if the Local Court on re-trial were to accept his explanation that he did not in fact “possess” the pepper spray, and that the spray was in fact owned by his wife? In that circumstance, he would not have re-offended after having received the warning from the Department that any further offences would prompt re-consideration of the original decision not to cancel his visa.    

Is this a circumstance where the Court should have said: “Hey, wait a minute, why don’t we stay these proceedings until we know what the outcome of the Local Court proceedings is?” 

What do you think? Was this the right outcome? Was it fair? Was it just?

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