Australian Immigration Daily News

Is the Migration Act consistent with the expectations of a democratic society?

For example, it is consistent with the concept of the presumption of innocence?

Or does the Act incorporate some “authoritarian” features that may be considered to give the “Executive” – those administering the Act - disproportionate and excessive power to unfairly curtail the rights of visa holders?

I have recently presented an example  from one of my own recent cases (decision handed down “orally” or by way of an “ex temporaneous” judgment and therefore no written reasons publicly available) where it was held by Judge Smith of the Federal Circuit Court that a visa may be cancelled under section 116(1)(e) simply where the visa holder has been charged with an offence, even though there has been no determination of guilt and the merits of the criminal charge have not yet been decided.

There has recently (23 March) been a decision of the Full Court of the Federal Court along similar lines – Cheryala v Minister for Immigration and Border Protection (2018) FCAFC 43.

In this case, the Court upheld  the validity of the Migration Regulations which prevent a person from making a valid application for a Bridging Visa E in circumstances in which a person has had a previous visa cancelled – even though the basis for that previous cancellation no longer exists.

Here was the background of the case:

The visa holder, a citizen of Lebanon, had been granted a Bridging Visa E.  In June 2017, he was arrested by the NSW Police, and charged with three offences: 1) take and detain a person with intent to obtain advantage; 2) sexual intercourse without consent; and 3) assault with an act of indecency.

His visa was then cancelled under section 116(1)(g), which provides that a visa may be cancelled if a “prescribed ground” for cancelling the visa applies to the visa holder.

The “prescribed grounds” that may create a basis for visa cancellation under section 116(g)(1) are listed in regulation 2.43.  They include, at regulation 2.43(1)(p)(ii), that the visa holder has been charged with an offence against a law of the Commonwealth, a State , a Territory, or another country.

In Cheryala, the visa holder was taken into custody at the Villawood Detention Centre near Sydney after his visa was cancelled.  Although he was informed that he could apply for review of the cancellation decision, he instead elected to make an application for a new bridging visa. 

However, shortly after the application for the bridging visa was lodged, he was informed that the application for a new bridging visa was invalid.

This was because Item 1305(3)(g) of Schedule 1 imposes a requirement that applicants for Bridging Es must not previously have held a visa that was cancelled  on the basis of one of the grounds specified in regulation 2.43(1)(p).

What happened next though was that all of the charges against the visa holder were withdrawn, and the prosecution against him was dismissed.

So, the underlying basis for the visa cancellation , the untested criminal charges, effectively “ceased to exist”. 

Nonetheless, the Department apparently did not withdraw or revoke the cancellation.

And because the visa holder did not seek review of the cancellation before the AAT, it became “final”.

The visa holder challenged the Department’s determination that his application for a further Bridging Visa E was invalid in the Federal courts, claiming that regulation 243(1)(p)(ii) and Item 135(3)(g) of Schedule 1  are themselves invalid because they infringe the presumption of innocence.

However, the Full Court rejected this challenge. It held that these regulations do not infringe the presumption of innocence, because they result in no determination of guilt. In the Court’s view,  the regulations do no more than provide that if a person’s visa has been cancelled under 2.43(1)(p), then that person cannot make a valid application for a Bridging Visa E.

In other words, what was critical in this case was that the visa had been cancelled, and the visa holder had effectively allowed the cancellation to become final by not challenging it in the AAT.

On a certain level, though, doesn’t it appear that an injustice has been done to the visa holder in this case?  Although the offences that he was charged with are undoubtedly repugnant, he was never convicted of these offences. And the underlying basis for the cancellation of his original Bridging Visa E was effectively “erased” when the criminal charges against him were dropped.

But the end result here was that the visa holder lost his entitlement to remain in Australia as a lawful non-citizen.  And the loss of that entitlement resulted from criminal charges that were dropped by the prosecution shortly after they were lodged.

Does this seem to you to be an outcome that is entirely fair, right and just?