Australian Immigration Daily News

There are  some cases that sure have “wacky facts”, and also have unexpected outcomes!

Here’s a case in point:  the decision of Justice Logan in Ogawa v Minister for Immigration and Border Protection (2018) FCA 62.

Let’s start here: how would you rate the chances of a person avoiding visa refusal if she had the following background and history, as the visa applicant did in Ogawa:

The applicant had been convicted after a jury trial of two counts  of using a carriage service (in other words, internet service provider/telephone service provider) to harass, and two other counts of using a carriage service of making a threat to kill.  These charges arose from an incident in April 2006 in which the applicant had sent 83 emails to various email addresses at the Federal Court within an 18 hour period, and making 176 phone calls to registries and chambers of the Federal Court in a period of a bit more than a month.

The charges also stemmed from threats made by the applicant to kill registrars of the Federal Court.

And, amazingly enough, this conduct was carried out by a lawyer: the visa applicant , a citizen of Japan, was in Australia  originally to pursue post-graduate studies in law, and had applied for a partner visa, which was refused on character grounds.

And how about this: when the applicant was sentenced for these offences, she screamed throughout the sentencing hearing and was removed from the courtroom!

So who said the case reports on Austlii about migration decisions are “boring”? Not moi!

But here is where this case is useful in migration practice: it offers some good ideas about how to challenge a visa refusal on character grounds successfully!

Because, believe it or not, the applicant in this case was able to persuade Justice Logan of the Federal Court that there were good grounds for setting aside the Minister’s decision to refuse her partner visa application – even though she failed the character test, by reason of being sentenced to imprisonment cumulatively for these offences for a total period exceeding 12 months.

The visa refusal decision in this case was set aside on two separate grounds.

The first ground arose from what can be described as perhaps the most classic form of “jurisdictional error”, the failure by the minister to consider a relevant matter.

What had occurred was that the visa applicant had submitted additional information in support of her application after the application was initially lodged, but before the application was actually determined.  So, under sections 54 and 55 of the Migration Act, the Minister was required to have regard to that information in making the decision as to whether to grant or refuse the application.

The information in question consisted of a certificate that the applicant had completed a course in “Emotional Intelligence (Includes Simulation); another certificate for completion of a course in “Managing Conflict”; and a brief letter written by a psychiatrist that provided an opinion that the applicant was not “a risk to the community”.

And even though the Minister’s Statement of Reasons for the visa refusal had recited that the Minister had considered all relevant matters, including evidence provided by the visa applicant, the Court looked behind this general statement and found that the Minister had in fact not considered either of the course completion certificates or the letter from the applicant’s psychiatrist.

So: the Minister’s failure to have regard to relevant material (relevant in this case to the issue of whether the applicant posed a risk of harm to the Australian community) that had been submitted after initial lodgment of the application, pursuant to sections 54 and 55, proved, by itself, fatal to the visa refusal.

There was a second ground on which Justice Logan found that the Minister had been guilty of jurisdictional error:

The visa applicant had sought a pardon of her convictions from the Governor-General of Australia, and had asked the Minister to defer making a decision on the visa application until a decision had been made on the request for a pardon. But the Minister had declined to defer deciding the visa application until a decision had been made on the request for pardon (it is noteworthy that in circumstances where a person has been pardoned, the effect of that pardon under section 510(10) of the Migration Act is that the person is taken never have been convicted of the offence (and thus, if pardoned, may not fail the character test!).

It was Justice Logan’s view that the Minister’s refusal to defer a decision on the visa application was legally unreasonable. 

So there you have it! Unexpected outcomes do happen!

And maybe it would be a good strategy for persons who are seeking to avoid visa cancellations or visa refusals on character grounds to interpose pardon requests. It could throw a wrench into the works of the Department’s cottage industry” of visa cancellations, couldn’t it?

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