Australian Immigration Daily News

Is it possible to stop the Department from acting to refuse a visa application on character grounds? 

Or to put this question in a more legally precise way, is it possible to get an injunction to restrain the Minister from “exercising the discretion” under section 501(1) of the Migration Act to refuse the grant of a visa on character grounds? 

These questions were at the heart of a recent case that started out in the High Court, and which was ultimately decided in the Federal Court: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2017) FCA 813 (20 July 2017). 

This was the background of the case: 

The applicant is a citizen of Bangladesh who was being held in immigration detention on Christmas Island. He had originally come to Australia with his father, who had been posted to a diplomatic position at the Bangladeshi Embassy. He had married an Australian wife, and had a 4 year old daughter. 

However, on two separate occasions, in 2005 and again in 2008, he was convicted of aggravated robbery, and was sentenced to 4 years imprisonment the first time, and five years the second time.

He had also been convicted of driving offences in 2012, including drink driving and “obstructing and/or resisting a public official”. 

His immigration history was also complex and convoluted:  In 2008, he had applied for a “business visa”, which was refused because he did not pass the character test.  Then, in 2012, he applied for a Partner visa, which was also refused on character grounds. Afterwards, in September 2015, he applied for a Protection visa.  

This Protection visa application was refused in the first instance by a delegate of the Minister on the basis that the applicant was not a refugee under section 36(2) (a) of the Migration Act.  The Tribunal originally affirmed the refusal, but that decision was quashed by the Federal Circuit Court. On remittal, the Tribunal found that the applicant was indeed a refugee. 

However, at that point the Minister notified the applicant that he was considering refusing the Protection visa application on character grounds. 

It was at that stage that the applicant approached the High Court seeking to restrain the Minister from refusing the Protection visa on character grounds.  

This application to the High Court was framed as an application for an “interlocutory injunction and an order of habeas corpus” (to compel the release of the applicant from immigration detention). That application was dismissed by Justice Edelman of the High Court. The case was then remitted to the Federal Court for final determination, where it was heard by Judge Flick. 

At the High Court, Justice Edelman had described the applicant’s case as “weak”.  And when the case came before Judge Flick, it was observed that the characterization of the case as “weak” remained accurate, and that the case had not gotten stronger since it was before the High Court. 

So what submissions were put to the Federal Court in support of the effort to restrain the Minister from exercising discretion to refuse the Protection visa application on character grounds? 

The primary argument that was made was based on what may be best described as common law principles of “estoppel”. Essentially, the applicant argued that by not giving notice at the very outset of the process of review of the application for the Protection visa that the Minister might refuse the application on character grounds, then the Minister was precluded or prevented from doing so later on in the review process. 

In other words, it was claimed that by not telling the applicant that the application could conceivably be refused on character grounds, the Minister had, by “silence”, induced an “assumption” on the part of the applicant that the Minister would not proceed to refuse the visa on character grounds. 

The Federal Court rejected this argument. 

First of all, as the Court observed, common law concepts of “estoppel” are, as a rule, not applied to prevent the government from performing a duty or exercising a discretionary power.  So arguments that the government is somehow “estopped” from refusing a visa application on character grounds because it does not announce to the applicant at the outset that an application could possibly be refused on character grounds simply are not going to get anywhere. 

The Federal Court quoted the following passage from the High Court case of Attorney-General (NSW) v Quin, which articulates this principle: 

“The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power”. 

The second problem with the applicant’s estoppel argument was that ordinarily, in order to establish  a “common law estoppel”, it must be shown that the person asserting that the other person is “estopped” has relied to their detriment (changed their position or course of action) on the basis of a “promise”.  Here there was no evidence of such detrimental reliance. 

Furthermore, the Court referred to the recent decision of the Full Court in BCR16 v Minister (previously discussed on this blog) where it was held that there is no requirement that the criteria for a visa be considered by the Minister (or the Department) in any particular order.  

Consequently, the Court found that there was nothing wrong with the Minister considering whether to exercise the power to refuse a visa on character grounds after an assessment had been made as to whether the applicant could be considered to be a “refugee”. Nor was there any requirement that the Minister inform the applicant at the outset of the visa review process that the application might be refused on character grounds. 

The long and short of this is that arguments that the government is “estopped” from exercising its powers under the Migration Act are extremely unlikely to succeed. 

In fact, it is very very doubtful that even if the Department were to say to an applicant “we are not going to refuse your visa on character grounds”, that the Department would in fact be prevented from doing so!! 

Arguments were also advanced by the applicant that the Minister’s failure to provide notice at the outset of the review of the visa application that it might by refused on character grounds amounted to a denial of procedural fairness. 

This submission was also rejected fairly summarily. 

The Court took the view that an applicant is afforded procedural fairness when he/she is notified that consideration is being given to refuse the application, and again there is no requirement that the applicant be notified at the beginning of the review. 

Likewise the Court held that it is not legally unreasonable, and thus not “jurisdictional error” for the Minister to first consider whether an applicant is a refugee, and then subsequently to consider whether an application ought to be refused on character grounds. 

The moral of this case therefore is that efforts to prevent the Minister/Department from engaging in the process of weighing whether to cancel a visa on character grounds are virtually certain to have very limited prospects of success. 

It may be another matter whether the Minister can be prevented from cancelling the visa of a person who is a refugee, as was the applicant in this case, and to hold the person in immigration detention indefinitely because the person Australia’s non-refoulement obligations prevent the Minister from returning the person to his/her home country. 

A discussion of that issue may appear on this blog, so stay tuned!

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