Australian Immigration Daily News

Imagine that you are contacted by a potential client who is in immigration detention and asks if you are able to help him. 

Imagine further that the client tells you the following information about his situation: 

He was the holder of a 457 visa.  When he went to the international airport in Sydney to take a flight overseas, he filled in an “outgoing passenger card”.  He responded to a question on the card that asked whether he was taking more than $10,000 out of Australia by answering “No”.  However, a routine search of his baggage by officers of the Australian Border Force revealed that he was in fact carrying more than $24,000. 

As a result of the initial search by the ABF which found the Australian currency, the client’s mobile phone was confiscated. A search of his phone by the ABF revealed that there were photo IDs and receipts of other people on the phone, and that the client had been charged with a range of offences relating to fraud, identity theft and being in possession of goods suspected of being obtained through the proceeds of crime. 

Additionally, the client instructs you that as a result of providing incorrect information on his outgoing passenger card, a Departmental officer had determined that he had not complied with section 102(b) of the Act (which prohibits the giving of incorrect answers on an outgoing passenger card) and had consequently cancelled the client’s visa under section 109. 

Lastly, the client tells you that although the criminal charges against him have not yet been finally determined, the AAT has affirmed the cancellation of his visa, and the Federal Circuit Court has concluded that the Tribunal had not been guilty of any “jurisdictional errors” in its decision to cancel the visa. 

Having heard this story, do you throw your hands up in the air and conclude that there’s nothing you can do?  Was this client’s situation beyond salvation? 

Well, the answer is that it wasn’t! 

In a recent decision (18 August 2016), Dalla v Minister for Immigration and Border Protection (2016) FCA 998, Judge Logan of the Federal Court concluded that the Tribunal had committed jurisdictional error, and that the Federal Circuit Court (Judge Street) had incorrectly found that there had been no jurisdictional error. 

So what happened here? How did the visa holder get the Tribunal’s decision overturned? 

It’s a little complicated, but not that complicated. So keep reading! 

Under section 109(1)(c) of the Act, when the Minister (and thus also the Tribunal) is considering whether a visa should be cancelled, the Tribunal is required to have regard to “prescribed circumstances”. 

The “prescribed circumstances” to which the Minister and/or the Tribunal is required “to have regard to” are specified in regulation 2.41. 

Regulation 2.41 provides that the prescribed circumstances include: 

2.41(j): any breaches of the law since the non-compliance and the seriousness of those breaches; and

2.41(e): the present circumstances of the visa holder. 

So here was the first critical question in the case:  How is subregulation 2.14(j) to be interpreted? 

What does the word “since” as used in 2.41(j) mean? Does it mean that the conduct giving rise to breaches of the law must have occurred after there was a non-compliance with section 102(b)? Or is it sufficient, in order for breaches to be “considered” as matters to be taken into account in determining whether a visa should be cancelled,  for the conduct to have occurred either at the same time, or before the breaches of section 102, so long as a prosecution for that conduct is commenced after the breaches? 

On this issue, Judge Logan concluded that the subregulation 2.41(j) must be interpreted as meaning that for conduct to be taken into account as a reason for cancelling a visa, the conduct must have taken place after  the breach of the Act that prompts a cancellation decision.  

The next issue, and this is what the case really turned on, was whether the Tribunal was entitled to consider the fact that the visa holder had been charged with the series of offences involving fraud, etc. as a matter adverse to the visa holder even though the charges had not yet gone to trial and therefore the charges had not yet been determined. 

For what had occurred when the visa cancellation decision was before the Tribunal is that the Tribunal had stated that: 

“the Tribunal finds that the offences that the applicant has been charged with are of a serious nature and this factor has weighed heavily on the Tribunal’s mind with regard to the exercise of discretion”. 

This is where Judge Logan found that the Tribunal had gone wrong. 

Rather than simply treat the fact that the criminal charges had been brought against the visa holder as a matter that was part of his “present circumstances” (2.41(e), the Tribunal had counted these charges as a matter adverse to the visa holder when exercising its discretion whether to cancel the visa. 

What the Tribunal should have done, in Judge Logan’s view, is not treat the fact that the visa holder had been charged with offences as a matter weighing in favour of the cancellation of the visa because the visa holder was entitled to a presumption of innocence on those charges.  

Thus the fact that those charges had been brought should not have been taken to weigh against the visa holder either until he was actually convicted of the offences, or unless the Tribunal had itself considered the evidence on which those charges had been based and had made an affirmative finding that the visa holder had breached the law. 

Another interesting aspect of this case is what happened to the visa holder in terms of being placed in immigration detention.  The incident at the airport that led the Department to cancel his visa occurred on 20 July 2015.  After he was charged with the fraud and other offences, he was granted bail by a Magistrate. His visa was cancelled on 30 September 2015 and he was transported to immigration detention on that day.  And it was not until nearly a year later, on 18 August 2016, that the decision was made by Judge Logan that the Tribunal had committed jurisdictional error when it affirmed the cancellation of his visa. 

So in effect, even though the visa holder has apparently still not been tried on the underlying fraud, etc. charges, he has nonetheless suffered the loss of his liberty pending the challenge to the visa cancellation. 

What do you think of this? 

Section 15 of the Act provides that the effect of cancellation of visa on status is that the former holder of a visa becomes, on the cancellation of a visa, an unlawful non-citizen  unless the person holds another visa; section 82 provides that a visa that is cancelled ceases to be in effect on cancellation; and of course section 189 provides that it is mandatory that an unlawful non-citizen be detained. 

But is it right? Is it fair? Is it just? 

Should someone whose visa has been cancelled be effectively imprisoned in immigration detention while they challenge the cancellation?  

Suppose the visa has been wrongly cancelled? 

What do you think?

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