Australian Immigration Daily News

Remember that famous phrase “Just when it seemed that it was safe to go back into the water……”

Likewise, it seemed based on a decision that was made by Justice Collier of the Federal Court in the case of Tesic v Minister for Immigration and Border Protection (2016) FCA 1465 last December that there might just be the possibility of a new ground for challenging a decision by the Minister under section 501CA(4) of the Migration Act,  not to revoke the cancellation of a visa on character grounds.

In other words, that the door to challenging cancellation decisions might have been propped open just a tiny, tiny crack, and that there might be a new avenue open to visa holders that would enable them to contest successfully decisions by the Minister to cancel.

Recall that in Tesic, the Minister had used the following phrase in his Statement of Reasons in support of the cancellation:

“I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.”

It was Justice Collier’s view that the use of this language referring to a “principle” could not “properly be confined to rhetoric expounding the relevant considerations concerning the visa holder’s criminal history and the importance of protecting the Australian community.” 

Rather, Justice Collier held that the Minister’s reference to there being  a “principle” that persons who commit serious crimes can expect to lose the privilege of remaining in Australia was a reference not just to policy but was in fact an (incorrect) statement of a principle of law.

And that by referring to such a “principle”, and effectively equating that “principle” to a “rule of law”,  the Minister had committed jurisdictional error.

Well, this week there was a decision by the Full Court of the Federal Court following an appeal of Justice Collier’s decision by the Minister.  And the Minister was successful in that appeal: Minister for Immigration and Border Protection v Tesic (2017) FCAFC 93 (7 June 2017).  So Justice Collier’s decision was overturned.

And the slight opening in the door for challenging visa cancellations on character grounds that had appeared to have been created by Justice Collier’s ruling has not been slammed shut.

What happened in the Full Court?

The three judges who heard the case, Justices Reeves, Robertson and Rangiah, did not accept that, when read in context, the Minister’s use of language referring to a “principle” that persons who commit serious crimes an expect to forfeit the privilege of remaining in Australia did not mean that the Minister had improperly elevated the principle to a rule of law. 

Rather, the three judges of the Full Court found that in referring to “principles”, the Minister was, in context, not referring to principles of law, but was actually referring to statements of government policy that are stated in Direction 65. 

This Direction has wording under the heading of “Principles” (at clause 6.3 of the Direction) which does state that a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia.

So it was the Full Court’s view that the language used by the Minister in the Statement of Reasons did not actually elevate the “principle’ concerning the loss of the “privilege” to remain in Australia as a “rule of law”.

And it was the further view of the Full Court that the reference to such a principle by the Minister, being a reference merely to policy and not being a reference to law, had not improperly “coloured the Minister’s reasoning process”. 

The Court ruled that by referring to this “principle”, the Minister had not improperly taken the view that there was a rule of law that would necessarily mean that persons who have committed serious crimes simply cannot have the cancellation of their visas revoked.

And so goes another slender thread by which the cancellation of visas on character grounds can conceivably be challenged successfully.

The “rote” recitals of the “principle” that so routinely appears in the Minister’s Statement of Reasons for exercising personal powers to cancel a visa, or to refuse to revoke the cancellation of a visa, won’t be a “hook” that will enable such decisions to be overturned.

Stay tuned to this blog though, there will, at the appropriate time, be news about another strategy that can be used to fight cancellations on character grounds!

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