Australian Immigration Daily News

Is there anything you can do when the odds seem to be hugely stacked against your client?

When it looks like there’s practically no possibility of getting a positive outcome?

A case that was handed down by the Federal Court yesterday, 7 December, Tesic v Minister for Immigration and Border Protection (2016) FCA 1465 shows that what may appear to be impossible on the face of a situation can actually (at least some times!) be overcome. And that if you never give up, turn over every stone, and put every relevant document under the microscope, then yep, you may have a shot at pulling off what may seem like a miracle.

How hard did the Tesic case look to be? Really hard!!

The background of the case was that Mr Tesic, who had arrived in Australia in 1987 at the age of 10, was convicted in November 2012 of trafficking in dangerous drugs. He was sentenced to seven years in prison. While he was in prison, his permanent residency visa was cancelled under the mandatory cancellation provisions of section 501(3A) of the Migration Act.  Upon the cancellation of his visa, he became an unlawful non-citizen. So when he was released from prison, he was taken into immigration detention, where he remained until his case was heard by the Federal Court.

After his visa was cancelled, Mr Tesic was given the opportunity to make representations to the Minister to seek revocation of the mandatory cancellation. However, the Minister found that he posed an unacceptable risk of harm to the Australian community in light of a 20 year history of illicit drug use and a history of offending extending from 1993 to 2010 (when he was apprehended for the offence that led to his imprisonment and cancellation of his visa). The Minister concluded that the risk of harm outweighed other considerations in the case including his lengthy residency (nearly 30 years) and strong ties to Australia. Accordingly, the Minister declined to revoke the cancellation of the visa.

Case over? Not so fast.

In the statement of reasons that was signed by the Minister refusing to revoke the visa cancellation, it was recited that Mr Tesic had continued to traffic dangerous drugs after he had ceased personal use of drugs. It was Mr Tesic’s evidence in the Federal Court proceedings that he had actually stopped using drugs in February 2010, and that he had not trafficked drugs since the date that his own personal use had ceased.

However, the issues paper that the Department’s staff had prepared for the Minister had stated that    Mr Tesic’s offending had continued beyond the time when his personal use of drugs, into March 2010 And the Minister’s statement of reasons had contained a conclusion that Mr Tesic had continued to traffic dangerous drugs after his personal use had ceased, even though the basis for this conclusion was not given in the statement of reasons.

What saved Mr Tesic (at least for the time being) were the decisions of the Full Court in the case of Lu v Minister for Immigration and Multicultural and Indigenous Affairs and of the Federal Court in the case of Ruatita v Minister for Immigration and Citizenship.

 In Lu, the Full Court held that when the issues paper that is presented to the Minister in connection with a proposed decision to cancel a person’s visa on character grounds mis-states the person’s criminal record, and the Minister proceeds to cancel the visa in reliance on this incorrect information, then jurisdictional error will have occurred and the cancellation decision will be vulnerable to challenge.

Similarly, in Ruatita, the Federal Court held that it is jurisdictional error when the statement of reasons that the Minister gives for cancelling a visa does not correctly state the period of time that the visa holder has spent in custody.

The reason that the mischaracterization of a person’s criminal history amounts to jurisdictional error is that there is a possibility that if the true nature of the visa holder’s criminal history is properly appreciated by the Minister (and it is less serious than indicated in the issues paper or the statement of reasons), then the Minister may come to different conclusions concerning the likelihood of the visa holder’s re-offending and causing harm to the Australian public.

In other words, a different understanding of the visa holder’s criminal history may lead to a different decision by the Minister as to whether to cancel a visa, or to refuse to revoke the cancellation of a visa.

And so it was held in the Tesic  case: the Court held that if the Minister had had a correct understanding of when Mr Tesic’s offending had ceased  (in other words, that he had stopped trafficking in drugs when he had ceased personal use of drugs), then the Minister may have reached different conclusions concerning the risk that Mr Tesic might re-offend, and concerning the risk of harm that his continued presence posed to the Australian community.

This was so even though the difference between the date that the Minister had believed that Mr Tesic’s offending had stopped (March 2010) and the date when the evidence indicated he had actually stopped trafficking in drugs (February 2010) was only about a month.

So the moral of this case is that when one is challenging a visa cancellation decision, it is essential, really essential, to check to confirm whether the facts relied on by the Minister are correct.

That is a lesson that can be applied more generally – that when a decision-maker relies on an erroneous understanding of the facts,  in circumstances where there is a “rational possibility” that the decision maker could have reached a different conclusion if the facts had been understood correctly, there is a live prospect that jurisdictional error will be found.

There’s the key!

So accomplishing the impossible may not be as impossible as it sounds!

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