Australian Immigration Daily News

How harsh is Australia’s system of visa cancellation under the Migration Act?

Very? Too? Not enough? Does it depend on your point of view?

Take for example the case of Maioha v Minister for Immigration and Border Protection (2018) FCA 1015, decided very recently (9 July 2018) by Justice Perry of the Federal Court.

The circumstances of this case were that the person whose visa was cancelled is a 39 year-old citizen of New Zealand, and thus the holder of a “Special Category” visa, Subclass 444.  She has lived in Australia for 30 years, having been brought to Australia at the age of 9. And she had 6 children in Australia, 4 of whom were still minors at the time of the Assistant Minister’s decision not to revoke the mandatory cancellation of her visa (which had occurred by reason of the fact that she had been sentenced to a term of imprisonment of 12 months or more.

The material before the Assistant Minister when the decision not to revoke the cancellation was made indicated that the visa holder had not worked since she had commenced a de facto relationship at the age of 16, as she had been occupied raising her children while her former partner was the provider for the family’s financial needs; that she had a history of drug abuse and had suffered from depression; and that she had suffered a period of homelessness prior to the convictions that led to the cancellation of her visa.

The core claim that the visa holder had made in her representations in support of the revocation of the cancellation of her visa was that if she were to be returned to New Zealand, she would have nowhere to live and no money, as she had no assets, debts totaling $1,000 and “no easily accessible assets or money overseas” in New Zealand.

These representations were not enough to forestall the Assistant Minister from refusing the visa holder’s request to revoke the visa cancellation.

It was the Assistant Minister’s finding that the hardships that the visa holder would face if she were returned to New Zealand would not be “insurmountable” in “light of New Zealand’s similar culture, language and health system standards”.

So, what did the Court decide? Was there jurisdictional error in the Assistant Minister’s decision not to revoke the cancellation?

Justice Perry found that there was.

The error resided not in the “merits” or “substance” of the case – in other words, it would have been “impermissible merits review” for the Court to decide whether it was appropriate to return the visa holder back to New Zealand notwithstanding the undisputed impediments that she would encounter there. So the Court did not substitute its own judgment for the judgment of the Assistant Minister as to whether the impediments were sufficient reason to revoke the cancellation.

Rather, Justice Perry found that the jurisdictional error was present in the “reasoning process” that the Assistant Minister had followed.

Justice Perry concluded that the Assistant Minister had not given the visa holder’s representations concerning the impediments she would encounter (in terms of difficulty achieving basic living standards) “proper, genuine and realistic consideration”. 

Among other things, Justice Perry found that the Assistant Minister’s Statement of Reasons for declining to revoke the cancellation had not stated how the Assistant Minister had resolved the visa holder’s claims that she would have nowhere to live and no money if she were returned to New Zealand.

And the Court found that the Assistant Minister’s finding that the culture, language and health standards in New Zealand are similar to those in Australia did not explain why the financial hardship that the visa holder would experience would not be insurmountable.

And further, the Court found that the Assistant Minister’s statement that the visa holder would “undergo a period of adjustment” upon being returned to New Zealand did not address the visa holder’s financial concerns.

In short, the Court concluded that the Assistant Minister had dealt with the visa holder’s concerns about the financial hardships she would encounter in New Zealand only in a cursory manner that summarily dismissed the claims that had been made, and therefore left uncertainty as to what, if anything, had been resolved.

So: the lesson here is that while it may not be possible to challenge the substance or merits of a decision not to revoke the cancellation of a visa, a very close reading of the reasons given for not revoking the cancellation may reveal that the decision-maker has not considered and resolved the visa holder’s claims with the degree of care and thoroughness to enable a finding that the decision-maker has given the case proper, genuine and realistic consideration.

And in some cases, that may be the key to overturning a visa cancellation decision that may seem harsh and oppressive!