Australian Immigration Daily News

In yesterday’s article, concerning the decision of the Federal Court in Ogama v Minister for Immigration and Border Protection, I noted that it surely appears that the Department has an ongoing “cottage industry” involving the cancellation of visas on character grounds.

Well, when you read the case reports from the Federal Courts on Austlii, it looks like there is more than a “cottage industry”! The visa cancellations on character grounds are being churned out by the Department at a rapid rate, it seems at times as quickly as Apple is churning out iPhones!

And, as the recent case of Burgess  v Minister for Immigration and Border Protection (2018)FCA 69 (12 February 2018)  illustrates, it seems that a particular target of the visa cancellation “compliance programme” is visa holders who have had involvement with “outlaw motorcycle gangs”.

The Burgess  case is interesting and worthy of note, because it shows that the Department’s/Minister’s determination to “remove” from Australia people with criminal histories that have had alleged involvement in outlaw motorcycle gangs, mistakes can get made which lead to the setting aside of cancellation decisions. 

And learning about these “mistakes” has value that goes beyond just cases involving persons with alleged involvement in motorcycle gangs, or even visa cancellations generally: the type of “mistake”, or put another way, “jurisdictional error” that occurred in Burgess  could easily occur in a case involving the refusal of a visa application, for example.

This was the “story” in Burgess:

The visa, which in this case was a “Class BF Subclass 155 Resident Return visa” was cancelled by the Minister exercising “personal powers” under section 501(3) (b)of the Migration Act.  As readers will be aware, this section of the Act  vests the Minister with power to cancel a visa in circumstances where the Minister reasonably suspects that the visa holder does not pass the character test and the Minister is satisfied that the cancellation is “in the national interest”.  In such circumstances, the visa may be cancelled “without natural justice” – in other words, the visa holder does not need to be notified that the Minister intends to cancel the visa, or given the opportunity to make submissions concerning whether the visa ought to be cancelled, before the Minister proceeds to cancel the visa.

In Burgess, the visa was cancelled in the first instance in June 2016.

However, on 16 September 2016, orders were made in the Federal Court, by consent, “quashing” this original cancellation decision. The reason that the consent orders were made is that, in making the cancellation decision, the Minister had taken into account an erroneous history of the visa holder’s criminal conduct, which had incorrectly recorded that the visa holder had committed an aggravated assault against the police.

(Note: In circumstances when the Minister or a delegate relies on or refers to an erroneous compilation of a person’s “criminal history”, a visa cancellation or refusal may well be vulnerable to challenge as being affected by jurisdictional error!)

Back to the Burgess case!

The Department was evidently aware that consent orders were going to be made which would have the effect of quashing the original, June 2016, visa cancellation decision.  It therefore took steps to prepare to cancel the visa again, quickly after the consent orders were made. A package of materials was prepared for review by the Minister in relation to a “fresh” or “further” decision to again cancel the visa.

The difficulty was that the Court found that the Minister had devoted no more than 15 minutes to consideration of the materials that had been compiled  in relation to the proposed new cancellation decision before making the decision.  These materials amounted to 89 pages of documents. 

Although the Court found that some of the materials that had been put before the Minister prior to the second cancellation decision  (made in September 2016, on the same day that the consent orders were approved by the Federal Court quashing the original, June 2016 cancellation decision), it also observed that it was “unlikely” that the Minister would have been able to recall the details in these documents several months later, so that it would have been unnecessary for the Minister to read and re-evaluate the materials before making the second cancellation.  

Also, the materials that were in the package that was given to the Minister before he made the second cancellation decision,  in September 2016, included materials that had not been in the package of materials that had been put before the Minister before he made the first cancellation in June 2016. These materials included submissions made by the visa holder’s legal representatives, as well as submissions made by family members of the visa holder, and character references.  There was also material in the package that was put before the Minister before the second cancellation decision relating to the best interests of the visa holder’s children, sentencing remarks in respect of the visa holder’s offences, and a psychiatric report concerning the visa holder’s mental health.

The Court concluded that in light of the volume of materials that had been placed before the minister before the second cancellation decision and the “range and nature of the issues to be determined”  it was “more probable than not” that the Minister had not engaged in an “active intellectual process” in reviewing the materials.

So the Court found that the Minister had not properly decided the issues bearing on the exercise of the power to cancel the visa, and that the cancellation decision had been affected by jurisdictional error.

There is a really important lesson here, and it is that if a decision has been made “very quickly/hastily”, in circumstances where it does not appear that there could have been proper or genuine consideration of the supporting materials, there may very well be a possibility of challenging that decision!

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