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An Extraordinary Visa Cancellation Case Under Section 116(1)(e)!!

Are you ready to read about a case that is quite “extraordinary”?

First, you must answer a quiz! (I know, I know, it’s late in the year, who can be bothered with any type of quiz!!!)

Here it is, anyways: Do you need to be convicted of a criminal offence in order to have your visa cancelled?

Answer to quiz: No, you don’t have to be convicted of a criminal offence!

Under section 116(1)(e), a visa may be cancelled if: “the presence of the holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community”.

As a reminder and a PS, note that even under section 501(1) of the Migration Act, there is authority to cancel visas even where the visa holder does not have a “substantial criminal record” within the meaning of section 501(6), and even if the holder has not been convicted of an offence, for example under 501(6)(c), a person can fail the character test and be subject to visa cancellation purely on the basis of the person’s “past and general conduct”.

Ok, with that background, back to the extraordinary and unusual case, Howard v Minister for Immigration (2017) FCCA 2916 (29 November 2017).

The background circumstances were that the visa holder, Linda Howard, had been granted a subclass 155 Resident Return visa. She was a US citizen who was resident in Docklands, Victoria.  The Department proceeded to cancel her visa while she was overseas.

What is really interesting and different about the case was the basis for the cancellation of the visa.

The story was that Mrs Howard and her husband had been sued in the United States District Court for the Eastern District of Virginia for by an Ethiopian national who they had previously employed for alleged mistreatment. 

The allegations against Mrs Howard were that she was:

  • Complicit in her husband’s ongoing physical and sexual abuse of the Ethiopian national, known as “Jane Doe”;
  • Participated in psychologically manipulating her to compel her labour and services;
  • Participated in verbally and mentally abusing her;
  • Refused her request to relocate away from her husband to a different room within the US Embassy compound to avoid further abuse;
  • Entered into a scheme to induce her to travel from Yemen to Japan for the purpose of forcing her to perform involuntary labour and sexual services;
  • Acted inequitably in failing to pay her in accordance with the relevant market rate.

What occurred in respect of the court proceedings in the United States was that Mrs Howard had left the United States while those proceedings were pending and awaiting trial. A Magistrate Judge of the United States District Court then, in her absence, recommended that a default judgment be entered against Mrs Howard. And a judge of the United States District Court then assessed damages in favour of the Ethiopian national, “Jane Doe”, and against Mrs Howard, in the amount of approximately $3.3 million.

Subsequently, proceedings were brought by “Jane Doe” in the Victorian courts to enforce the judgment of the United States District Court. And in fact, judgment was entered against Mrs Howard directing her to pay the civil damage award that had been determined in the US judicial system.

So, was what had been determined in the US court sufficient to support the cancellation of Mrs Howard’s visa?

In the Howard case, Judge Burchardt referred to a previous decision of Judge Smith of the Federal Circuit Court in a case called Gong, where Judge Smith had observed that the threshold for the visa cancellation power under section 116(1)(e) to be engaged Is very low. In Gong, Judge Smith had stated that:

“…the fact that sub-s 116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be…any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past”.

And here, Judge Burchardt concluded that the allegations that had been made against Mrs Howard, and which had been “proven”, as a result of Mrs Howard’s failure to defend the proceedings in the US District Court, thus resulting in a default judgment being entered against her (in a civil case) were sufficient to pass the “low threshold that section 116” establishes.

Accordingly, Judge Burchardt held that there had been no jurisdictional error on the part of the Department in proceeding with the cancellation of Mrs Howard’s visa under section 116.

Quite a remarkable case, especially in view of the extremely serious allegations made against the visa holder in the US District Court proceedings!

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  • Guest
    Michael Morrisroe Tuesday, 05 December 2017

    Hi Michael,
    A wonderful posting on an unusual case!
    In US Courts, we normally do not accept the facts alleged in a default judgement in the same manner that we accept facts in a case that has been adjudicated between represented parties. There are, of course, time limits within which US federal and state courts allow automatic appeals of defaults to reopen, and there are then later dates within which contested appeals of defaults may be taken.
    Without any predisposition toward the clients in the migration appeal, I would still think that a carefully instituted US appeal might have reopened the US case and vitiated the default judgement. I do not know whether the visa applicant was advised by a US lawyer. I think that the matter might have been handled differently if she had good US advice. The fact that a Victorian court accepted the default indicates to me that the visa applicant may have chosen to not incur the costs of a US lawyer. As a reminder, in the US each side bears its own costs regardless of outcome--save in very rare situations. US cases, especially ones like that the visa applicant would have needed to open, are very expensive.
    Is any appeal of the going to be taken of the Federal Circuit Court of Australia decision?
    I was surprised at paragraph 55 which starts “Once you know, as the delegate clearly did, that the applicant had, in effect, fled America to avoid the trial and the possibility of execution of a judgment following the trial...” I could not find certain knowledge that the applicant had fled America to avoid the trial. It seems more of a supposition than actual knowledge. However, the judge had the advantage of reading all the briefs and background information, and he had no obligation to go further into the proofs in this decision.
    It’s a proper outcome; and I can see people having scant sympathy for the visa applicant; but I wonder whether it might not have been far different if the applicant had taken steps to exert her rights in America.

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