Australian Immigration Daily News

How severely should the visa cancellation power under the Migration Act be exercised?

Should a non-citizen who has been convicted of supplying a commercial quantity of heroin and who has been sentenced to a term of imprisonment of 5 years and 3 months automatically be “kicked out”?

Suppose that the visa holder has been living in Australia since the age of 5 years old?

Or suppose that the visa holder has an extremely rare medical condition that is life threatening, and that it is uncertain whether his home country has adequate health care facilities to provide him with the necessary treatment.

These questions are raised by a case decided last week by Justice Flick of the Federal Court in Taivei v Minister for Home Affairs (2018) FCA 1129 (2 August 2015).

The background of this case is that the visa holder had contracted a rare bacterial infection while undergoing heart surgery at a hospital in Sydney. There are only about 100 known cases of this infection worldwide.

Several letters written by the visa holder’s treating physicians were submitted to the Minister in support of the visa holder’s request that the cancellation of his visa be revoked.

These letters stated that the infection had affected the visa holder’s lungs, his bone marrow, and his kidneys, causing him to suffer kidney failure.  The medical letters also stated that the visa holder requires long term anti-biotic therapy and ongoing intervention by specialists in infectious diseases and cardiology. It was submitted that the hospitals and medical facilities in the visa holder’s home country, Fiji, are not as well equipped as those in Australia and that without access to appropriate specialists and medications that the visa holder would be at risk of premature death.

These submissions did not persuade the Minister to revoke the cancellation of the visa.

Even though the Minister accepted that the visa holder had complex medical problems with a high risk of mortality, and that he might be unable to receive optimum medical treatment in Fiji, the Minister nonetheless decided to refuse the visa holder’s request that the cancellation of his visa be revoked.

So how did Justice Flick resolve this case?

The Court concluded that the decision to refuse to revoke the cancellation had been affected by jurisdictional error, and therefore, that the decision ought to be set aside.

The error that was found by Justice Flick was that the Minister had failed to give genuine, proper and realistic consideration to the submissions that had been advanced on behalf of the visa holder.

In particular, the Minister had not made any findings, nor had he given any consideration to a number of critical aspects of the case, such as whether the medication and specialist doctors required by the visa holder were even available in Fiji.

It is noteworthy that in this case, Justice Flick did not comment on the merits of the Minister’s decision, namely, whether it was an appropriate balancing of the visa holder’s history of criminality against his serious medical condition to proceed with the visa cancellation.

Rather, Justice Flick confined his consideration to the reasoning processes that were used by the Minister, and to whether those processed had been in accordance with law – namely whether the Minister had made findings on the critical issues in the case sufficient to enable a conclusion that the Minister had given genuine, proper and realistic consideration to the visa holder’s submissions.

It was here that Justice Flick concluded that the Minister had fallen into error, and this is what led to the Court’s arriving at a conclusion that the visa cancellation decision should be set aside.