Australian Immigration Daily News

What would you say if a client rang you up with the following scenario:

After coming to Australia on a student visa to do post-doctoral research, his car collided with the wall of a house causing a brick to fall on the head of an occupant of the house. The client told police that another person had been driving the car, but he was “too drunk” to know who that person was. And the client was charged by the police with a motor vehicle offence for “not disclosing the details of the driver”. 

Doesn’t sound too bad yet, does it? 

Well suppose there were more to the story, and the client went on to tell you that he had also been charged with the following offences: 

• procure person not prostitute for prostitution;
• cause child 14 years or older and less than 18 years old to do an act of child prostitution;
• knowing deal with proceeds of crime;
• obtain benefit from child prostitution;
• use a child over 14 years to make child abuse material; and
• disseminate child abuse material. 

Suppose the client told you that he steadfastly maintained his innocence concerning these charges, that he had been released on conditional bail, and that he hadn’t yet gone to trial on the charges. 

And what if the client then told you that his student visa had been cancelled by the Department under section 116(1)(e) of the Migration Act, which provides that the minister may cancel a visa if the Minister is satisfied that the presence of the visa holder in Australia “is, may be, or would, or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community or to the health or safety of an individual or individuals. 

Further, what if the client told you that his application for review of the cancellation of his student visa had been dismissed, and that the cancellation decision had been affirmed? 

Would you conclude that the client was totally “in strife”, and that an application for judicial review would be “doomed to failure”? 

Well, the scenario outlined above actually did play out in real life, in a case that was decided on 8 April 2016 by Judge Smith of the Federal Circuit Court: Gong v Minister for Immigration & Anor  (2016) FCCA 561. 

And if you thought that the visa holder carrying this fact pattern was “doomed”, you were wrong! 

Yep, that’s right, Judge Smith concluded that the Tribunal’s decision to affirm the cancellation of the student visa was infected with jurisdictional error, and therefore quashed the decision! 

The case does raise a very fundamental issue: Can someone’s visa be cancelled on the basis that they have been charged with very serious criminal offences, even though they have not yet been convicted of those offences? 

Judge Smith did not address that specific question, but did find that there were enough problems in the way that the Tribunal had handled the case that they warranted quashing the cancellation. 

What were those problems? 

First: the Tribunal had observed that since the police had initiated the charges against the visa holder, the police must have had a reasonable basis for believing that the visa holder had committed the offences with which he had been charged.  However, the Tribunal did not take the process of analysis a step further. It did not go beyond the observation that since the police had charged the visa holder, they must have had a reasonable belief that he had committed the offences to making an assessment as to whether there was a reasonable basis in fact for concluding that the visa holder had committed the offences. 

In short, Judge Smith concluded that the Tribunal had made a finding of fact which was not based on any evidence- namely, that because the police had charged the visa holder, there must be a reasonable basis for the charges. Judge Smith held that in doing so, the Tribunal had committed jurisdictional error. 

Judge Smith found that there were further errors in the Tribunals decision: 

• The Tribunal had concluded that the criminal charges against the visa holder alleged that he had been involved in the business of prostitution, when in fact the charges did not, themselves, allege that any business or commercial activity had been undertaken by the visa holder;
• The Tribunal had counted the lack of extenuating circumstances as a matter adverse to the visa holder – and not as something that was merely “neutral”. Judge Smith found that it was not logically open to the Tribunal to do so.
• The Tribunal had changed the basis of its decision-making by finding that there was a ground for cancellation of the visa on the basis that there was a possibility that the visa holder’s continued presence in Australia might pose a risk but then exercising its discretion to cancel the visa on the basis that there was not just the possibility of risk, but actually an “ongoing risk”. 

In summary, Judge Smith considered that “the number and nature of errors were so serious that they undermined any logical basis there might otherwise have been for the decision.  Thus, it followed that there had been jurisdictional error on the part of the Tribunal, whether described as “a constructive failure to review, irrationality, or in some other way”. 

It is worthy of note that Judge Smith did not address an argument that had been advanced by the visa holder’s representatives that the visa cancellation decision was so unreasonable that no reasonable decision-maker would have made the decision (in other words, that the decision was the result of so-called Wednesbury unreasonableness”) and that it was “disproportionate”  in the sense described by Judge Logan of the Federal Circuit Court in the Stretton and Eden  cases as being the equivalent of “using a sledgehammer to crack a nut”. 

Judge Smith noted that while the concept of “proportionality”  is used in Australia in various areas of the law, that when it comes to cases involving the exercise of statutory discretion , real care must be taken that the court remains within the proper limits of judicial review. 

It appears that in making this observation, Judge Smith had in mind the recent judgments of the Full Court in the Stretton and Eden cases that in reviewing a visa cancellation decision, the courts must confine their review to examining whether the decision was made lawfully, and that the courts should not engage in merits review or substitute their own judgment as to whether a visa should have been cancelled for that of the department/Minister.

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