Australian Immigration Daily News

The difficulty of challenging a decision by the Minister not to revoke the mandatory cancellation of a visa on character grounds is illustrated  by a recent decision of the Full Court, handed down at the end of April: Marzano v Minister for Immigration and Border Protection (2017) FCAFC 66 (26 April 2017).

Once again, this case shows that residence in Australia since early childhood, and personal circumstances that provide “compassionate” circumstances that weigh in favour of revocation of the cancellation decision may not be sufficient to “rescue” the visa holder’s right to remain in Australia.

And the case also shows that it may be very hard to come up with strong legal arguments to challenge a decision by the Minister not to revoke the cancellation.  In fact, the case shows that sometimes the legal representatives of a visa holder may be reduced to a position of “grasping at straws”, and that the “straws” are not strong enough to persuade the courts to overturn the decision not to revoke.

The background in the Marzano case was that the visa holder had originally arrived in Australia from Italy with his parents and siblings in 1990, when he was 7 years old. He was granted permanent residency status in 1994.

However, during the period from 2005 – 2014, the visa holder was convicted of a number of robberies that followed a similar pattern, in which he approached a lone service station attendant armed with a knife and demanded money and/or cigarettes.  In 2006, and again in 2012, he was warned by the Department that he was at risk of revocation of his visa. On both of those occasions, the Department decided not to proceed with the cancellation, and instead it issued a formal warning.

However, in 2014, the visa holder was convicted of armed robbery and was sentenced to a term of imprisonment of 2 ½ years.  This conviction resulted in the mandatory cancellation of his visa, a decision that was made by a delegate of the Minister.

Following the cancellation of his visa, the visa holder made representations to the Minister in support of his request that the cancellation be revoked. These representations claimed that he had strong and longstanding ties to Australia through his length period of residence, employment, family and social ties; that he would suffer hardship if forced to return to Italy; and that his family members in Australia would be adversely impacted and would suffer emotional distress if he were to be removed from Australia.

However, the Minister came to the conclusion that, in view of the violent nature of the visa holder’s offending, the risk of harm to the Australian community outweighed the factors in support of revocation of the cancellation.

The visa holder was not able to develop persuasive legal arguments to challenge the Minister’s decision not to revoke the cancellation.  

The first argument that was advanced on behalf of the visa holder was premised on an interpretation of the section of the Migration Act  which empowers the Minister to revoke a mandatory cancellation, section 501CA(4).

This section authorizes the minister to revoke a cancellation if the Minister is satisfied that the visa holder actually passes the character test, or if there is “another reason” why the cancellation should be revoked.

It was argued that this section justifies revocation if there is any reason at all why the cancellation should be revoked.

However, the Full Court rejected that interpretation.

It concluded that it is insufficient that it be demonstrated only that there is “any” reason at all why c cancellation should be revoked. In the Full Court’s view, section 501CA(4) requires the Minister to engage in an evaluative, or “balancing” exercise, of weighing the various factors in a case both in favour and against revocation.

Therefore, simply establishing the existence of any single reason to support revocation, or even a collection of reasons, will be insufficient if the factors against revocation (for example, the protection of the Australian community against harm that might occur as a result of re-offending by the visa holder) are stronger, or are assigned greater weight.

The other arguments that were raised for the visa holder were dismissed rather summarily by the Full Court.

A submission was made that a decision not to revoke a cancellation could be made only by the same delegate who had made the decision to cancel the visa in the first instance.

The Full Court held that such an interpretation would result in an “inflexible practical outcome” that did not have any support in the Migration Act, and for which no sustainable policy justification had been advanced.  In the Court’s view, this suggested interpretation would result in “operative inconvenience” if, for example, the delegate who had cancelled were to leave the Department, or if the delegate’s position were to be “reclassified”. 

The last argument made for the visa holder was that when the Minister is considering whether to revoke the cancellation decision, the Minister may have regard  only to information that is sent to the visa holder at the time that the visa holder is notified of the mandatory cancellation and is invited to make representations concerning the reasons why the cancellation should be revoked..

The Full Court held that the materials that the Minister may consider are not restricted in the way that was suggested.  Rather, the Court reasoned that if the visa holder submits representations and documentation to the Minister in support of a revocation request, it is open to the Minister to respond to those representations.

The only requirement is that if the Minister has regard to materials that were not provided to the applicant with the original notification of the cancellation decision, the Minister will be obligated to provide that information to the visa holder, and afford the visa holder an opportunity to comment on the material, before proceeding with a decision on the revocation request. 

It all goes to show that fighting a mandatory visa cancellation that is made on character grounds is a hard slog, and the grounds for a successful challenge are narrow!