Australian Immigration Daily News

Is a case that appears hopeless necessarily hopeless? 

We have seen in many cases over the last few years that the Department and the Minister (through exercise of personal powers not to revoke) have been engaged in a process of very routinely and broadly cancelling visas on character grounds, and that the bases on which such cancellation decisions can be challenged in Federal Court are really quite narrow. 

So what about the following situation, described in a decision of the Federal Court that was handed down last week, Coker v Minister for Immigration and Border Protection, (2017) FCA 929 (15 August 2017): 

The visa holder was convicted of the offence of “doing grievous bodily harm”.  The underlying conduct is described as involving “stabbing a 13 year old with a knife”.  The remarks of the sentencing judge indicate that the visa holder had stabbed the victim “in the back” and that the injuries inflicted on the victim were “life-threatening” as the stab wound had cut a major artery, and the victim would have died from blood loss without surgical intervention. 

The sentencing remarks also noted that when he was initially interviewed by the police, the visa holder “gave a self-serving and dishonest version of events, denying stabbing the victim”; that he entered a late plea of guilty to the charge, on the day that his trial was set to begin; and that he had made “absolutely no expression of remorse”. 

The visa holder had been sentenced to a term of imprisonment of 4 years and 3 months, so it was evident that he had a substantial criminal record as defined by section 501(6) of the Migration Act. 

And what if you were trying to get the Assistant Minister’s refusal to revoke the cancellation of the visa overturned on a ground of “jurisdictional error” - in other words, on the grounds that the Assistant Minister had failed to consider a relevant matter – but there were recitations in the Assistant Minister’s “Statement of Reasons” to the effect that the Assistant Minister had “considered the visa holder’s representations and the documents submitted” - wouldn’t look even bleaker than bleak for your prospects to succeed with a judicial review application, and to get the cancellation “set aside”? 

Well, as we all know, life is full of surprises, and the outcome of the Coker case was that the cancellation was set aside when it was challenged in the Federal Court before Judge Moshinsky. 

So what happened? 

Although the visa holder’s sentence was originally scheduled to extend until 1 January 2017, the Central and Northern Queensland Regional Parole Board decided to release him approximately 2 years before the end of his sentence, in February 2015. 

And, in their submissions to the Assistant Minister stating grounds in support of the revocation of the cancellation of the visa, the visa holder’s legal representatives had specifically referred to the Parole Board’s decision to grant early release to the visa holder, and argued that this decision demonstrated that the Parole Board considered that the visa holder no longer posed a threat to the Australian community. 

What is more, the Submissions that were provided to the Assistant Minister by the Department’s staff concerning whether the visa cancellation should be revoked did not make any mention at all of the Parole Board’s decision to grant the visa holder early release from prison. 

And even more, the Statement of Reasons that the Assistant Minister signed in support of his decision not to revoke the cancellation of the visa did not refer to the submissions made by the visa holder’s lawyers concerning the Parole Board’s decision to release the visa holder, nor did the Statement of Reasons expressly refer to the Parole Board’s decision itself. 

So, notwithstanding the recitals in the Statement of Reasons by the Assistant Minister that he had considered the applicant’s submissions and the documents he had provided in support of those submissions, the Court found that the absence of any reference to the submissions or the Parole Board decision gave rise to an inference that this material had been “overlooked” - that is, that it had not in fact been considered by the Assistant Minister. 

Therefore, the Court concluded that the Assistant Minister’s decision had been affected by a classic species of jurisdictional error, namely ignoring relevant material.  Thus, the Court determined that the Assistant Minister had committed a “constructive failure to exercise jurisdiction, a denial of procedural fairness and a failure to carry out the statutory task”. 

So the moral of this case for future matters is that it is simply not possible to read a decision affecting the rights of a visa holder or applicant “too closely”.  Although in so many instances what is said in a decision record or statement of reasons may sound rote, formulaic and may repeat words that are used a thousand other times in a thousand other contexts, it is oh so critical nonetheless to read the decision or reasons with utmost care. 

If there is a failure to make reference to material that it relevant to the decision at hand, then you may “hit paydirt” and find the key to unlocking and reversing an unfavourable decision!!

And the next time you have a case that may seem at first glance to be hopeless, don't forget the old George and Ira Gershwin song from the (1935!) opera "Porgy and Bess" - "It ain't necessarily so!!!".

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