Australian Immigration Daily News

Have you ever had occasion to have a case involving visa cancellation on character grounds?

This might seem to be a "niche" aspect of Australian migration practice - after all, isn't the preparation of visa applications of various kinds the "bread and butter" of most RMAs' day-to-day work?

But if you have a look on Austlii at the decisions coming our of the AAT and the Federal Courts, you will see that visa cancellations on character grounds are quite common place, and that while RMAs have been busy working on visa applications, the Department and the Minister have their own "cottage industry" involving visa cancellations.

And did you know that even if the Tribunal sets aside a visa cancellation, the Minister has personal powers to override that decision and to reinstate the cancellation?

And did you know that such actions be the Minister are not subject to the rules of "natural justice", so that the Minister has no duty to inform the visa holder that he/she is considering setting aside the Tribunal's decision to reinstate the cancellation, and has no duty to allow the visa holder to make representations or submissions to the Minister stating the reasons why the visa cancellation decision should not be reinstated?

And that the only remedy when that happens is to go to the Federal Court and try to challenge that decision on the basis that it is somehow affected by "jurisdictional error".

In other words, there is no opportunity for any merits review of a decision by the Minister to reverse the Tribunal's decision to revoke the cancellation of a visa on character grounds.

Well, if you ever do have such a case, there is a bit of recent news that you might find helpful:

Within the last year, there have been three cases, Ibrahim, Nguyen and, most recently, Weti-Safwan (decided this month) which all point the way to a strategy that can be used to get these Ministerial decisions to reinstate cancellations overturned.

All of these cases turned on the same point, which is somewhat "technical", but important nonetheless:

Essentially, in cases where the Minister is acting to reinstate a cancellation and to set aside a decision of the Tribunal, if the Minister's "Statement of Reasons" reflects that the Minister proceeded on the basis that the Minister was precluded from giving the visa holder natural justice, then the Minister's decision may well be found to be affected by jurisdictional error - on the basis that the Minister has misunderstood or misapprehended the power he was exercising.

What this means is that even though the Minister is not required to afford natural justice in such cases, at the same time, the Minister is not prohibited from doing so.

So, if you do have a case where a client is seeking your advice about a visa cancellation on character grounds, it will be worthwhile to have a very close reading of the Minister's Statement of Reasons ot see whether the same error can be found that was identified by the Full Court in Ibrahim, Nguyen and Weti-Safwan - or to bring in a lawyer to assist with the process of examining whether there is a case ot be brought in the Federal Court.

If you want to read more details about these cases, you can refer to my migration law blog, The Migration Messenger.

And please consider subscribing!