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Cancellations Under Section 116(1)(e): Harsh, Unfair, Draconian?

Are Australia's migration laws overly strict and punitive when it comes to visa cancellations? 

Do they run roughshod over our expectations of procedural fairness, natural justice and the presumption of innocence? 

I will share with you the story of a case that I recently handled in the Federal Circuit Court. 

You tell me what you think – please use the comments section! 

This was the story: 

The client was the holder of a Bridging Visa A, as a consequence of his having held a 457 visa, and then having applied for a Subclass 186 visa through the temporary residence transition stream. His de facto partner also held a Bridging Visa A as a member of his family unit, by virtue of the application for the substantive visa. 

Before the application for the Subclass 186 visa was determined, the client was arrested by the NSW Police, and charged with a drug trafficking offence. It was alleged that he had been found in possession of a commercial quantity of Ice – about 1 kilogram – in his backpack. 

The Department proceeded to cancel his visa under section 116(1)(e). 

This section vests the Minister with power to cancel a visa if he is satisfied that the presence of the visa 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 of a segment of the Australian community or the health or safety of an individual or individuals”. 

The wording of this section of the Act establishes a very low threshold for “enlivening” the visa cancellation power. 

As Justice Smith of the Federal Circuit Court said in the case of Gong v Minister for Immigration and Border Protection & Anor

“…..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. “

“”In this case, that possibility was supported by the laying of the charges”. 

The issue in my case was whether the mere fact that the visa holder had been charged with an offence was in and of itself sufficient to enliven the visa cancellation power. 

There was no other evidence in the record, either before the Department or the Tribunal: no evidence of any kind to support the proposition that the client had in fact engaged in any of the conduct giving rise to the police charge: no admissions of such conduct by the visa holder, no reference to any material in the police facts, nothing at all beyond the bare fact that the client had been charged with the offence. 

It was my submission to the Federal Circuit Court that even if the threshold under section 116(1)(e) may be considered to be “very low”, the threshold is not so low that a visa can be canceled without anything in the record to prove that the applicant may have engaged in the activity giving rise OT the offence. 

Mind you, I was not submitting to the Court that the Tribunal must engage in the exercise of determining whether a visa holder is innocent or guilty of the offence (which is of course the province of the criminal courts) – my submission was only that the fact that a visa holder has been charged with an offence is not in and of itself sufficient to enliven the cancellation power under section 116(1)(e). 

My submission was that a police charge is not “evidence”, and that the charge in law really amounts to no more than an untested and unproven allegation of criminal conduct on the part of the defendant. 

Indeed, in the Gong case, Justice Smith had held that the Tribunal had committed jurisdictional error by inferring from the fact that the police had charged a visa holder with an offence that there was a reasonable basis for the charge. Justice Smith held in Gong that the Tribunal's finding that there was a reasonable basis for the police charge was one that was not supported by evidence. Therefore, in Gong, Justice Smith concluded that the Tribunal had fallen into jurisdictional error, and quashed the Tribunal decision that had affirmed the cancellation of the visa. 

However, in my recent case, the FCC held that the mere fact of the charge, even without any evidence that the visa holder has actually engaged in any activity prohibited by the offence provisions, is enough, by itself, to enable the Minister (or his delegates or the Tribunal) to be satisfied of the “jurisdictional fact” that there is a possibility that the continued presence of the visa holder in Australia might pose a risk. 

So, the ultimate result of this case is that at least one judge of the FCC has held that the mere fact that a person has been charged with an offence is enough by itself to permit the Department to proceed with the cancellation of a visa. 

The difficulty of course, is that a visa holder may ultimately be found innocent of the charge, but will nonetheless have suffered the cancellation of her/his visa, become an unlawful non-citizen, and be subject to detention and removal. 

In my view, this interpretation of the law opens the door to what I would describe as the arbitrary and capricious exercise of the visa cancellation power in a way that disregards the cherished principle of the presumption of innocence. And it is an approach that in my view is contrary to Australia's democratic “system of governance”. 

I can tell you that it is my opinion that section 116(1)(e) is an odious provision of the law, one that should be dispensed with. (And I say that without condoning the client's alleged criminality, which, if and when proven, should be dealt with appropriately by the criminal justice system).

What are your thoughts?

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Comments

  • Guest
    kevin Thursday, 01 March 2018

    so a police charge is not EVIDENCE but i kilo of ice in this persons backpack is not enough to cancel his visa because it has to go thru the court system first & then this person has to be convicted assuming he was aware of the drugs in his backpack so a character test can only be determined by a criminal conviction is that your contention. i think that section 116 (1) e you have misgivings about has been place there & may be validly used under some circumstances. i think i understand what you are saying but he & his family members should be held under mandatory immigration detention with no visa until this case is resolved even if he was granted bail as this appears to be a very serious situation

  • Guest
    A Lawyer Thursday, 01 March 2018

    Definitely appeal to Federal Court - the Full Court would likely take interest, take it to the High Court if that's what it takes.

    Client needs to be aware that if he is found guilty then he is rightly done for because its ice.

  • Guest
    Guest Thursday, 01 March 2018

    My only question is “Do you know what you are doing???”

    By looking at the case objectively I don’t think you have a high chance of winning. Please check the definition of ‘risk’. It is not about how many piece of evidence you need. Furthermore the law does empower the minister to use his personal view. You may go to the high court to change the law itself saying it is against natural justice because I wanna keep a potential drug dealer in Australia or a potential serial killer because he only killed one person rather than a number of people.

  • Guest
    kevin Thursday, 01 March 2018

    i see the lawyers point your only guilty after a conviction & this visa cancellation could be interpreted as unjust yes take it to the high court but i also believe that unless you have pr some visas should be cancelled under certain situations this being one of them 1kg of ice in your backpack should be enough for you to be deported visa cancelled (after the court case has been completed) if you were aware of it if it was in your possession & a adequate explanation was not given to police when caught by the police even if you were found not guilty in the court case

  • John Peter Mendoza
    John Peter Mendoza Saturday, 03 March 2018

    s 116 (1) (e) I think it has to be evidence based. You are either a risk or you are not. 'may be' or 'might be' holds people to an impossible standard because one would have to argue that they 'might not' be a risk. It allows the Minister to be satisfied on the basis of speculation that could involve any number of hypothetical scenarios including prejudice.

  • Guest
    george Sunday, 04 March 2018

    Because of this kind of ''migrants'' or ''customers'', all other NORMAL people have troubles with DHA. If any person like to become an Australian he must realize that Australia is an Island.
    Australia is giving to everyone an equal opportunity to live, work and enjoy all of it. Why some d**heads making trouble for other people. Those are not worthy to me called an Australian!!!!!

  • Guest
    Judy Mclallen Monday, 05 March 2018

    Michael, The following scenario is a little difference from the one you told however the principle is closely matched. My client was on a Visitor Visa (subclass600) he is charged with sexual assault, held in remand for two months, the charges are dropped, my client is placed in detention and now awaits deportation. Can he appeal the visitor visa cancellation? Second question is, can he now apply for a Bridging visa without applying for a revocation of his visa cancellation?

  • Guest
    kevin Monday, 05 March 2018

    excellent question. I think this is the problem or not of this article in a nutshell. I look forward for the answer to this

  • Guest
    Mark Lyden Tuesday, 13 March 2018

    God some of the comments here are truly worthy of ABF members. I wouldn't rely on the mere fact that a NSW police officer has charged a visa holder with an offence (or said he found something in the visa holders bag) as sufficient evidence to enliven anything. Its worth giving the matter a run I think given the consequences for the visa holder.

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