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Immigration Daily News A Case Where Visa Cancellation Power Exercised Without an Ounce of Humanity or Compassion!Australian Immigration Daily News
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A Case Where Visa Cancellation Power Exercised Without an Ounce of Humanity or Compassion!
Are you ready for an example of the casual cruelty, heartlessness and total lack of empathy that can infect a visa cancellation decision made on character grounds?
One that reflects a total lack of humanity and lack of respect for basic human rights?
One that could make your blood boil (it does mine!!)
The example comes from the case of Caric v Minister for Immigration and Border Protection (2017) FCA 1391, a decision handed down yesterday, 29 November 2017 by Judge Bromwich of the Federal Court.
This was the background of the case:
The visa holder is a woman who was born in the former “Socialist Federal Republic of Yugoslavia” in 1965. She was brought to Australia by her parents in 1968 when she was 2 years old as the holder of what was classified as a “transitional (permanent) visa. While she never became an Australian citizen, she never left Australia either.
Unfortunately, the visa holder had become a heroin addict, and was on a long-term methadone program to treat her addiction.
She had also compiled an “extensive criminal history” which was not described in detail in the Federal Court’s reasons, but which led to the mandatory cancellation of her visa on character grounds.
The visa holder had made very powerful submissions to the Parliamentary Secretary of the Department (apparently Mr Michael Pezzullo, who has held the position since October 2014) concerning the impediments she was likely to face if the cancellation of her visa were not to be revoked.
These included that she had no family or friends anywhere in the former Yugoslavia; that she speaks only English; that she would be unable to work due to ongoing back issues; would be unlikely to receive any government benefits and could therefore end up homeless, which could in turn (obviously) lead to the shortening of her life. Furthermore, the visa holder was not entirely sure what town or territory of the former Yugoslavia was born in, whether the modern equivalent of her place of origin was truly Croatia or somewhere else, and whether her place of origin would recognize her citizenship.
Unbelievably (at least from my perspective), the visa holder’s submissions concerning the impediments that she would be likely to face upon cancellation of her visa were not sufficient to persuade the Secretary to revoke the cancellation of her visa.
Effectively then, this decision in my view is a statement along the following lines:: “Who cares if this person has lived in Australia for 50 years, since early childhood, and is Australian in every possible way except formally in law. Who cares if she’d be removed to a country of which she knows nothing, where she cannot speak the language, would be unlikely to find work or social support services and there is a very strong prospect she’d wind up homeless and dying prematurely. After all, she’s a drug addict with a criminal history, so throw her out!”
Well, even though the Secretary was not persuaded not to revoke the cancellation of the visa, the decision was nevertheless overturned in the Federal Court.
What saved the visa holder here was that the Secretary’s decision not to revoke the cancellation of the visa was found by the Court to have been infected by jurisdictional error.
Specifically, concerns were raised in the submissions made to the Secretary in support of revocation of the cancellation of the visa that there were “large questions” as to whether the applicant’s place of national origin would recognize her citizenship. There was therefore a significant issue as to whether the visa holder was actually a stateless person, and whether the legal consequence of the cancellation of her visa would be that she would be held indefinitely in detention (in other words, effectively suffer permanent loss of liberty).
These concerns were not canvassed in the submissions to the Secretary that were prepared by the Department, nor were they addressed in the written reasons signed by the Secretary for the decision not to revoke the visa.
So, since the Secretary had not considered the legal consequences of the visa cancellation – something that he was obligated to do under the Full Court’s decisions in NBMZ and in NBNB – the Court concluded that the Secretary had committed jurisdictional error. The decision not to revoke the visa cancellation was set aside.
But should it have really come to that? Should not the severe impediments that the visa holder would have faced had her visa been cancelled and she was forced to a country where she had not been for 50 years, since infancy, and where she would have been at risk of homelessness , have been enough to persuade the Secretary to revoke the cancellation? Was not whatever sentence of imprisonment the criminal justice system saw fit to impose on this visa holder punishment enough?
Should the visa cancellation powers really be exercised this harshly and mercilessly?
I don’t think so.
What do you think?
Comments
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Wednesday, 29 November 2017Why wasnt she deported sooner instead of unleashing a torrent of criminality on the Australian community?
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Wednesday, 29 November 2017
i think that the decision will simply be remitted to the minister or his delegate and re-made again.
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Wednesday, 29 November 2017
Once upon a time I had a full head of hair and faith that our government would treat people fairly. Then I grew up and now I have neither.
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Wednesday, 29 November 2017
This case is similar to the case of Robert Jovicic in 2007: http://www.abc.net.au/am/content/2008/s2170613.htm. He was a drug addict that had no welfare rights in Serbia and ended up camping out on the steps of the Australian Embassy in Belgrade. Amanda Vanstone was the Minister and she granted him a visa to return. This is a truly pathetic decision and Australia should be taking responsibility for people who have spent their whole lives here. We made them not their country of birth. Disgracefully harsh but then this Minister and his Dept are impervious to public shame and immigration does not gain traction in the media unless it is negative or there is an exceptionally heart rending story with lots of support on Change.org and a Sydney shock jock takes up the cudgels on the person's behalf.
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Wednesday, 29 November 2017
I would not bet on the Minister necessarily exercising much compassion. The attitude of DIBP decision-makers is influenced from the top down. If you have a compassionate and humane minister such as Chris Evans was, (he put in place the mission statement that People are our Business but this is no longer applicable sadly). This Minister described migration agents and lawyers who assist asylum seekers arriving by boat as "unAustralian". You must remember that the Minister was a former Police officer in Queensland. Hence he takes a hard line view on any criminal activity regardless of the level. Unless you can convince him there is no risk of recidivism, he will not make a favourable decision even if the risk is low and the person has turned their lives around. It happened to a client of mine who had his PR cancelled on national interest grounds three years after the AAT overturned the initial cancellation. He had a wedding planned with 300 guests arriving from overseas. The Minister waited until his parole was over. We wanted to challenge it in the Federal Court but the client did not have the funds and did not want to stay locked up in Christmas Island even if the matter were remitted back.
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Thursday, 21 December 2017
This case and many like it raise issues that have been vexing the Department and successive governments for years. Prior to 2014 when the mandatory cancellation provisions were introduced, each case like this one was the subject of an issues paper that went to either a senior Dept. exec or directly to the Minister's office. A decision would then be made on whether to exercise the 501 power and who would make a decision. Prior to mandatory cancellation, it appears a little more effort went into the decision making process. Now the onus has shifted from a question as to whether to deprive a person of their visa to, "Should we give this person their visa back?" The change in the legislative regime has led to a consequent shift in the consideration process because now the Minister (or delegate) can effectively hide in the shadow of the s501(3A) mandatory power. In the minds of these people, it appears expedient to conduct themselves in such a manner. The incompetence and intellectual laziness this decision and so many others indicate is utterly appalling. Sadly, it is the norm and will continue to be for the foreseeable future!
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The poor guys working in the Department as pen pushers, oops keyboard strikers, would have filed their heart in the filing cabinets for safe keeping till their retirement and entry into the community of humans..