Australian Immigration Daily News

Does anyone out there doubt that the visa cancellation powers under the Migration Act can be exercised by the Department/Minister a way that is harsh and oppressive?

If you are not yet convinced that this is the case, there is another prime example from a case that was decided by the Full Court of the Federal Court in late December – Parker v Minister for Immigration and Border Protection (2016) FCAFC 185 (20 December 2016).

Readers of this blog may recall the factual background of this case from our article about the decision made by the Federal Court in Parker v Minister for Immigration and Border Protection (2016) FCA 938.

As a refresher, those circumstances were as follows:

Mr Parker is a citizen of New Zealand who originally arrived in Australia in 1980 when he was one.

In September 2010, he was convicted of a series of offences and was sentenced to a term of imprisonment of 13 months. 

Although the Full Court’s decision records that consideration was given “at that time” (presumably in 2010) to cancellation of Mr Parker’s visa on character grounds, he was notified in February 2014 that a delegate of the Minister had decided not to cancel his visa on that occasion.

However, in June 2014, Mr Parker was convicted in his absence of an offence against the NSW Weapons Prohibition Act for allegedly having a can of “pepper spray” in his possession.  He was sentenced to pay a fine of $700 in connection with that conviction.

In July 2015 Mr Parker was notified by a delegate that due to the more recent conviction, the Department was again considering cancelling his visa.

And in the event, in March 2016, the Minister cancelled his visa and he was taken into immigration detention, where he remained (at least) until the time of the Full Court’s decision in December 2016.

Ironically enough, the 2014 conviction for being in possession of a can of pepper spray was annulled in the NSW courts after the Minister had decided to cancel his visa.

Does anyone else see that there are a few things seemingly wrong with this picture?

Mr Parker’s visa was not cancelled for nearly 6 years after the time that he was originally convicted of the offences that led to the sentence of imprisonment that caused him to fail the character test.  So apparently when first considered by a delegate of the Department, either the offences were not thought to be sufficiently serious to warrant cancellation of his visa, or there were other countervailing circumstances that the Department thought sufficient to prevent visa cancellation. 

Yet when taken up again, Mr Parker’s circumstances and background were considered sufficient to justify cancellation.

The offence of being in possession of the can of pepper spray wouldn’t have been enough by itself to have justified visa cancellation, would it? After all, Mr Parker was only fined for that offence.  The offence would not have been enough, by itself, to cause Mr Parker to fail the character test.

And of course, like in so many other cases, Mr Parker’s longstanding residence in Australia (for a period of approximately 36 years, since very early childhood) was not sufficient to protect him from losing his visa on character grounds.

The arguments that were made on Mr Parker’s behalf in the Full Court were not considered by the Court to be sufficient cause to quash the Minister’s decision to cancel his visa.

It was argued, first of all, that having decided in the first instance not to cancel his visa on character grounds, that it was not open to the Department to revisit that decision.

However, this contention was rejected by the Court.  It concluded that where a new fact emerges after an initial decision has been made not to cancel a visa that is relevant to the question of whether a visa ought to be cancelled (in this case the subsequent conviction for the possession of the pepper spray), that it was open to the Minister to proceed to cancel the visa.

And what about the fact that the later conviction for possession of the pepper spray had been annulled after the Minister decided to cancel Mr Parker’s visa? 

The Court held that it was open to the Minister to take that conviction into account, because it had not been annulled before the decision to cancel the visa.  The Court’s view was that the Minister was entitled to consider the facts as they stood at the time that the cancellation power was exercised – and again, it was not until after the visa was cancelled that the pepper spray conviction was annulled.

What do you think about what happened in this case?

Was the Minister’s decision to cancel the visa fair or unfair?  Too harsh or appropriate?

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