Australian Immigration Daily News

If it wasn’t already clear enough, a decision of the Full Court of the Federal Court that was handed down yesterday, 26 April 2017, emphasizes just how excruciatingly difficult it is to challenge a decision of the Minister to refuse to revoke the mandatory cancellation of a visa on character grounds.

In the vast majority of cases, challenging such decisions by the Minister will have a degree of difficulty analogous to trying to push a huge boulder up a very steep hill.

In order to successfully overturn a decision to refuse to revoke the cancellation of a visa in Federal Court, the visa holder must show that the decision was “infected” by jurisdictional error.  There is no such thing as “merits review” of the refusal to revoke the mandatory cancellation. And the grounds for establishing jurisdictional error are extremely narrow.

At the same time, a person who has suffered the mandatory cancellation of a visa on character grounds really has “nothing to lose” in a certain sense by challenging the refusal to revoke. The reason is that if the decision not to revoke is not challenged, the visa holder will remain an unlawful non-citizen and subject to mandatory detention and removal from Australia.

The decision of the Full Court that was handed down yesterday – Marzano v Minister for Immigration and Border Protection (2017) FCAFC 66 – illustrates that visa holders attempting to challenging the refusal to revoke may often find themselves “grasping at straws” for grounds to raise in Court.

Marzano shows once again that longstanding residence in Australia will not “save” a person from visa cancellation.  The visa holder in this case had been in Australia for 27 years, having arrived in Australia with his parents and siblings in 1990 when he was 7 years old.

(This circumstance also serves as a reminder that persons who have permanent residency status in Australia shouldn’t forego the opportunity to seek Australian citizenship when and if they can, as of course being an Australian citizen will “insulate” a person against removal; the apparent difficulty here was that the visa holder “ran up” what appears to be a pretty significant list of criminal offences during the period from 2005 – 2014, when he would have been between the ages of 22 and 31, and of course a substantial criminal history of that kind would almost surely have prevented the visa holder from meeting the separate character test for citizenship under the Australian Citizenship Act.)

So what were the arguments that were made in Marzano in the attempt to get the decision of the Minister not to revoke the cancellation overturned?

First, an argument was made concerning the proper interpretation of section 501CA(4)((b) of the Migration Act.

This section vests the Minister with authority to revoke a mandatory cancellation if the Minister is satisfied that the person whose visa has been cancelled: (i) passes the character test; or (ii) there is another reason why the original cancellation decision should be revoked.

It was argued  that s 501CA(4)(b) does not contemplate that there  should be an evaluative weighing of the factors in favour and against cancellation when the Minister considers whether the cancellation should be revoked. 

Rather, it was submitted, essentially, that even if it is confirmed that the visa holder does fail the character test, the visa cancellation must be revoked so long as there is any reason why it should be revoked.

That submission was rejected by the Full Court. It held that the language of 501CA(4)(b) implies that the Minister or his/her delegate must undertake an evaluative exercise to assess whether there is another reason (other than the person’s not flunking the character test) why the cancellation should be revoked.

The Full Court held that this “evaluative exercise” should involve the Minister’s making an assessment of the correctness of the original cancellation decision, by weighing and balancing the competing factors for and against cancellation.

The second argument put to the Full Court was to the effect that only the person who originally made the cancellation decision has power to decide whether to revoke the decision. In other words, if the mandatory cancellation was made by a delegate of the Minister, the visa holder’s lawyers said that in that case, only the delegate and not the Minister could make the decision whether or not to revoke the cancellation.

This argument “went down in flames”: the Full Court held there is no language in section 501CA that limits the power to revoke to the person who originally made the decision to cancel the visa. The Full Court held that the power to revoke can be exercised either by the Minister personally or by a delegate.

So the fact that the decision not to revoke the cancellation was made by the personally by the Minister did not invalidate the decision or cause it to be infected by jurisdictional error.

Lastly, it was argued on behalf of the visa holder that when considering whether or not to revoke the cancellation of a visa, the decision-maker may only consider the information that was given to the visa holder at the time that formal notification of the visa cancellation was made, and the representations that the visa holder makes in support of a request for revocation.

The reason that this argument was raised is that the issues paper that was prepared for the Minister to assist the Minister in determining whether or not to revoke went well beyond the scope of this material, and included matters such as sentencing remarks from the County Court of Victoria. 

This argument might perhaps have gotten some traction if the Minister had not provided the visa holder with an opportunity to respond to and provide comment on that additional information. However, it appears from the Full Court’s decision that such an opportunity was afforded to the visa holder.

Otherwise, the Full Court held that the Minister’s consideration of whether or not to revoke a visa cancellation is not confined to the information that was provided to the visa holder with the original notice of cancellation, or to the information provided by the visa holder accompanying representations seeking revocation of the cancellation. 

Rather, as the Full Court observed in its decision, under s 501CA, the Minister or the delegate considering whether to revoke cancellation can essentially consider just about anything relevant to the decision.

Again however there may be a procedural fairness obligation to provide materials not originally notified to the visa holder and to give the visa holder the opportunity to comment or respond.

So, is it a tough egg to crack to fight visa cancellation on character grounds, and to try to get a cancellation revoked?

Yep!!!!!!!!!

Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.