Australian Immigration Daily News

It is extremely unusual when the holder of an Australian visa is able successfully to challenge a personal decision by the Minister to cancel a visa on character grounds.

It is all the more unusual when a court overturns such a decision on the basis that it was “legally unreasonable”.

So when such a decision is handed down by a court, it is certainly worthwhile to examine that decision, and to understand how it was arrived at.  After all, the cancellation of visas on character grounds seems to have been something of a “cottage industry”, or “institutional priority” on the part of the Department in recent years, with a large number of such cancellations, many affecting people who have lived in Australia for decades, since the time they were small children.

And when a court overturns, or “quashes” a cancellation, that decision may also contain useful indications, or “clues” concerning the way that visa cancellations might possibly be contested in future cases.

The recent decision in which a visa cancellation was set aside by the Federal Court ((Judge Collier) was the case of Lyons v Minister for Immigration and Border Protection (2017) FCA 1381 (24 November 2017).

The factual background of this case was that the visa holder, who was born in Scotland in 1965, had emigrated to Australia with his family when he was 4 years old, and had resided in Australia since that time. He was married to an Australian citizen , has three children, of whom one was a minor at the time of the Minister’s cancellation decision,  along with an extended family of several sisters, cousins and an aunt in Australia.

There was evidence before the Minister from the visa holder concerning  factors weighing against the cancellation o of the visa,  none of which was sufficient to persuade the Minister not to proceed.

This included evidence from the visa holder that he “loves his wife and family “more than life itself”; that his wife, son and daughters would be “devastated” if his visa were to be cancelled and he were to be separated from them; that one of his sisters had terminal cancer, and that he maintained regular contact with her and paid for her to travel from Adelaide to Queensland to visit with his family; that he had provided letters of support to the Minister attesting that he was a kind and hard-working person who was well-liked and respected; and that he had been involved in raising funds for children with special needs and had undertaken fund-raising to assist with the renovation of a friend’s house to accommodate a child with a disability.

What prompted the Minister to cancel the visa was that the visa holder had been convicted of a criminal offence in 2007, 10 years prior to the cancellation decision.

The offence that occasioned the cancellation was that the visa holder, who was then the “chapter president” of a motorcycle club, had attended a tattoo parlor, in the company of other members of the club, to “have it out” with the operator of the tattoo parlor concerning “certain things which had transpired in relation to the tattoo parlor which reflected badly upon the club”.

 During this visit to the parlor, references were made to the parlor’s ceasing its business or paying a percentage of its business (presumably to the motorcycle club).

This incident led to the visa holder being prosecuted for offences of “being in premises with intent to commit an indictable offence” and extortion.

For these offences, the visa holder was sentenced to a term of imprisonment of 12 months; however that prison sentence was “wholly suspended”.

So what led the court to rule that the cancellation of the visa was legally unreasonable?

The court found that it was the Minister’s conclusion that the visa holder presented an on-going risk to the Australian community that was  unreasonable.

First, the court found that the Minister had “cherry-picked” the circumstances of the visa holder’s conviction and sentence to find reasons in support of the cancellation, and had ignored comments of the sentencing judge which were relevant to the issue of the likelihood that the visa holder might re-offend.

These included: that at the sentencing hearing, the prosecution had submitted that due to mitigating circumstances, it would be appropriate to release the visa holder on parole immediately; that although the offence of extortion for which the visa holder had been convicted carried a maximum sentence of 14 years, the visa holder had only received a suspended sentence of 1 year; that the visa holder had no other criminal history whatsoever, had pleaded guilty and had a good work history and stable relationship.

Secondly, the Minister’s statement of reasons made no mention of the fact that the visa holder’s sentence had been wholly suspended.

Thirdly, the Minister had placed great weight on the fact that the visa holder had in the past been associated with a motorcycle club at the time of the offence.  The difficulty, where the Minister’s cancellation decision was concerned, was that the visa holder had not been a member of the club for a period of several years by the time that the Minister made the cancellation decision, nor had he had any association with any other motorcycle club.

Fourth, and very significantly, the Minister failed to have regard to the fact that 10 years had passed since the time of the offence and the cancellation decision.  The court observed that this delay of 10 years by the Minister in determining that the visa holder posed a risk of harm to the Australian community was a factor contributing to the court’s finding that the cancellation decision was unreasonable – in other words, if the visa holder hadn’t offended in the last 10 years, where was the evidence that he posed a risk to the Australian community?

So yes, contesting a cancellation decision is generally extremely difficult. And it is noteworthy that the court did not find any fault in the Minister’s refusal to accept the strongly compassionate factors weighing against cancellation of the visa.  What actually did ultimately assist the visa holder was the Minister’s failure to take into account extremely important evidence going to the question of whether the visa holder really did pose a risk to the Australian community.

 It was this disregard by the Minister of these “relevant considerations” that amounted to jurisdictional error. And which in the end saved the day for the visa holder, and rescued him from cancellation, removal from Australia, and separation from his family.

It does seem that the visa cancellation in this case may possibly have been driven by a political agenda on the part of the Minister to remove from Australia persons who have had “associations” with motorcycle clubs, and that the Minister’s focus on that agenda may have led him (and the Department staff who assisted him with this particular decision) to overlook or disregard a number of important considerations, and this failure in turn made the cancellation decision vulnerable to challenge in court.

The moral of this story is that not all visa cancellation decisions by the Minister are the same, not all cancellations are immune from jurisdictional error, and that a close reading of the statement of reasons in support of the cancellation, and a comparison of those reasons with the whole factual background of the case may well disclose the existence of such error.