Australian Immigration Daily News

How interesting!

It seems that there is a never-ending stream of decisions coming out of the Federal Court involving the cancellation of visas on character grounds.

Just yesterday, there was another one, Schmidt v Minister for Immigration and Border Protection (2018) FCA 1162 (7 August 2018).

The case is again perhaps an exception to the general rule, in that it shows that challenging cancellation decisions by the Minister may not be as daunting and difficult a task as it may appear, that there are cracks in the brick wall of the visa cancellation regime where a challenge may succeed.

Even though no merits review of the Minister’s decisions is available under the current framework of the Migration Act.

And as a person originally from the United States, and one who follows politics in my home country very closely (too closely) and who absolutely cannot abide the Orange Monstrosity who currently “occupies”  the White House, there is an entertaining irony in this case concerning the findings that the Minister relied on concerning America (which Justice Burley of the Federal Court concluded was one that was made “without evidence”). Haha!

This was the story of the case:

The visa holder is a citizen of the United States who was born in 1974 and lived there until he was 5 years old, when his mother was tragically murdered in the course of an armed robbery at her workplace.  He was brought to Australia at the age of 5 by a grandfather who lived here.

During his time in Australia he compiled a significant criminal record, beginning from the time when he was about 14 years old.  Although he was warned several times that further offending could result in the cancellation of his visa, he nonetheless proceeded to commit additional offences after the warnings, and consequently, his visa was ultimately cancelled.

In considering the “impediments” that the visa holder would be likely to encounter if he were to be removed to the United States, the Minister noted that the visa holder had suffered from depression and drug dependencies in the past, that he had no family or social ties to America, and that separation from his partner and his children and hi slack of any personal support networks in America would make it harder for him to establish himself there.

However, in spite of these considerations, the Minister went on to conclude that since the United States has “a government welfare system that offers a level of support broadly comparable to that available in Australia”, that any practical hardship that might be faced by the visa holder in establishing himself in America “would not be so great as to prevent him in maintaining basic living standards”.

Justice Burley observed in his reasons in this case  that there was no dispute that there had been no evidence before the Minister to support a general conclusion that the welfare systems of the United States and Australia are broadly similar, or that the social security and public healthcare arrangements (relating to unemployment benefits and free health care) in the two countries are broadly similar.

Indeed, Justice Burley’s reasons observe that a conclusion that the government welfare systems in Australia and America are broadly similar is one that, in Justice Burley’s nicely chosen judicial expression, is “unsafe”, and indeed that it is common knowledge in Australia, or again, as Justice Burley put it, within the knowledge of the ordinary “wide-awake” person, that the welfare systems in Australia and America are not in fact broadly comparable.  (Indeed, anyone who has a glance at the New York Times or the Washington Post these days will know that the OM and his minions are doing their utmost to shred the social safety net in the US, including, among other things, trying to wreck the expansion of guaranteed health care introduced by the OM”s predecessor, President Obama - "Obamacare").

(Justice Burley’s reasons thus might be read as implying that the Minister and/or the members of his staff who prepared the reasons stating that the welfare systems in Australia and America are broadly comparable are not “wide-awake”. But I won’t go there any further!).

In terms of “jurisdictional error”, Justice Burley followed a line of decisional authority that holds that where an administrative decision-maker relies on a finding for which there is no evidence, and the finding is one that represents a critical step along the path to the ultimate conclusion, then jurisdictional error may be found to be present.

That is what happened in this case. The incorrect finding that the social welfare systems in Australia and the United States are “broadly similar” was a critical step along the path to the Minister’s ultimate conclusion that the visa holder would not encounter unreasonable impediments if he were to be returned to the United States.

So here, with apologies to the famous song written many years ago by the rock group Pink Floyd, is another crack in the wall of the edifice of visa cancellation.

We know from this case that where the Minister relies on a broad, general statement for which the Minister has actually no evidentiary support (e.g. unfounded assumptions about the social welfare system in America), that the visa cancellation decision will be vulnerable to challenge.