Australian Immigration Daily News

As we have seen over the last year, the Minister has been (very) actively using the powers given under the Act to personally cancel the visas of non-citizens who have committed serious criminal offences and who, as a result, do not pass the character test. 

And recent decisions from the Full Court in the cases of Minister for Immigration and Border Protection v Stretton and Minister for Immigration  and Border Protection v Eden have forcefully brought home the fact that the potential grounds for challenging a cancellation decision are really quite narrow, and thus the prospects for success in contesting a cancellation are commensurately “poor”. 

In both Stretton and in Eden, the Full Court reversed decisions by Judge Logan of the Federal Circuit Court in Queensland where His Honour had ruled that the visa cancellations were essentially “disproportionate” and therefore “legally unreasonable”. Judge Logan had used a pithy analogy in describing those Ministerial decisions, equating the visa cancellations to “using a sledgehammer to crack a nut”. 

However, on appeal by the Minister, the Full Court had rejected the approach taken by Judge Logan, and, in doing so, had basically dashed cold water on the thought that a doctrine of “proportionality” might somehow be applied by the courts in reviewing cancellation decisions.

(In other words, that the courts might somehow be inclined to weigh the visa holder's criminality and the risk of harm to the Australian community against competing considerations such as the person's long-standing residence and family ties to Australia and the best interests of his/her children in having the visa-holder/parent remain in Australia, and then find that visa cancellation was not an appropriate regulatory response in the circumstances of the case). 

Rather, the decisions of the Full Court in Stretton and Eden provide caution that it will not be an easy task to challenge a visa cancellation on grounds of “legal unreasonableness” and that concepts of “proportionality” will likely be of very little utility.

Indeed, these decisions both illustrate that the courts will be disinclined to engage in anything that might “resemble” merits review, and they will not be inclined to engage in an exercise of “second-guessing” or “substituting their own judgement” for the Minister's in determining whether a cancellation decision was proper. 

Instead, Stretton and Eden suggest that the role of the courts in reviewing cancellation decisions will be limited to determining whether the decision was within the Minister's lawful authority under the Act; whether the Minister has had regard to “mandatory relevant considerations” such as the potential risk of harm if the visa holder is allowed to remain in the Australian community, whether visa cancellation is consistent with the best interests of any children, whether visa cancellation would run afoul of Australia's international humanitarian obligations not to return a person to a place where he/she would be at risk of persecution, and whether the visa holder was accorded “procedural fairness” by being presented with adverse information and being given the opportunity to comment upon it. 

All of which is to say that trying to fight a decision by the Minister to cancel a visa cancellation is, in most cases, likely to be a “Sisyphean” exercise of attempting to push a huge boulder up a steep hill – exhausting and most probably “fruitless”. 

Indeed, the level of difficulty that is likely to be encountered in contesting a cancellation on character grounds is well illustrated by another decision that was recently handed down by the Full Court, Tanioria v Minister for Immigration and Border Protection (2016) FCAFC 43 (21 March 2016). 

As in other cases, the visa holder in Tanioria had long-standing ties to Australia. A Fijian national, he had lived in Australia since 1982, when he was brought here by his parents at the age of 18 months. So, by the duration of his residency in the country, he was nearly as “true blue” an Aussie as a person born in Australia to parents who are citizens or permanent residents. And he also had very strong family ties to Australia, including a daughter, a stepson, his parents, siblings and nieces and nephews. 

Weighing against these considerations was the visa holder's criminal history. 

The offence that prompted the cancellation decision occurred in September 2012. In clinical legal terms, it was characterised as “recklessly inflicting grievous bodily harm”. In more concrete and graphic terms, the conduct was described as involving kicking and punching the victim, leaving him with three fractures to his jaw, a shattered left eye socket, a dislocated nose and a cut above his left eyebrow, injuries that at the time that the visa holder was sentenced a year after the incident still required further surgery. 

To make matters worse for the visa holder, he had received 3 warnings from the Department prior to the incident that breach of the character test could lead to cancellation of his visa. 

So, the incident in September 2012 put the visa holder in an extremely precarious position. Good luck after committing that type of offence (which resulted n a prison sentence of 35 months) of trying to argue that the risk of future harm to the Australian community if the visa holder should re-offend would be “low”! 

In a case with this type of factual context, a visa holder may very well be left trying to “grasp at straws”. 

In Tanioria, it was submitted that the cancellation decision was infected by jurisdictional error because it was said to proceed upon the basis of a “purpose to impose punishment, rather than to address the question of the protection of the Australian community”. 

However, the Court had regard to the Minister's Statement of Reasons for the cancellation, and concluded that this ground should be rejected. And indeed, the Statement was focussed on the issue or risk of harm: the Minister's Statement cited the very serious nature of the visa holder's criminal offending, and the “great harm” that could result to the Australian community if he should re-offend, as the principal bases which let him to conclude that the visa should be cancelled. 

The visa holder also argued that he had been denied procedural fairness because he had not been provided with a copy of the Departmental Submission that had been given to the Minister regarding the proposed cancellation of his visa, and because he had not been given an opportunity to comment on the Submission. 

The Court made “short shrift” of this argument. It held that there is “no rule that the person the subject of the decision must be given any departmental submission given to the decision-maker”. Furthermore, the Court determined that the visa holder had not, as a matter of fact, been denied the opportunity to address relevant adverse material, because that material had been made known to the visa holder through a letter that gave notice of the Department's intention to consider cancellation of the visa. 

So what is the basic lesson here? Judicial review proceedings may well be the “last hope” for a person who has had their visa cancelled on character grounds by the Minister to remain in Australia. However, the decisions coming out of the courts have made it clear that the grounds on which a cancellation decision can be challenged are really very narrow. Therefore, in most circumstances, the prospects for getting such a cancellation overturned are very limited.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.