Australian Immigration Daily News

Are things ever as straightforward and simple as they might appear? 

Not usually – right? Not in the sphere of migration law, and not in our everyday experience either! 

A case that was handed down by the Full Court on 14 April – Cotterill v Minister for Immigration and Border Protection (2016) FCAFC 61 – certainly brings this point home. 

The case involved the cancellation of a person's visa on the basis that he did not pass the character test. And in fact in the proceedings before the Full Court the visa holder conceded that he did not pass the character test. 

Furthermore, the visa holder had pleaded guilty to charges involving child sex offences. Specifically, two counts of indecency in the presence of a girl under 16; two counts of indecently assaulting a male under 16, and one count of unlawfully and indecently assaulting a girl. He had been sentenced to prison for 12 months on each charge, with the term of imprisonment partially suspended on each charge and the sentences to be served concurrently, so the total period of imprisonment was 3 months. 

OK, this case was a real no brainer, correct? 

Well, we know that under section 501(3A) of the Act, the visa holder would have been subject to mandatory visa cancellation on the basis of having a substantial criminal record and having pleaded to sexually based offences involving a child, had he been in prison serving a full-time custodial sentence at the time of the decision by the Minister. In this case, the visa holder had spent two years back in the community following his release from prison, and had completed a “12 month good behaviour bond” by the time of the cancellation. 

So he wasn't subject to mandatory cancellation. 

But still! Wouldn't the criminal history alone warrant visa cancellation? Would anyone argue that a convicted child sex offender doesn't indisputably fail the character test if sentenced to imprisonment for a period of 1 year or more, or that a person who commits such an offence while in Australia on a visa has, in the proverbial formulation, forfeited the privilege to remain in Australia? 

In the event, a three-judge panel sitting as the Full Court unanimously ruled that the Minister's decision to cancel the visa should be “quashed”, or overturned. 

On what basis did the Full Court arrive at that conclusion? 

Reading “between the lines” of the Full Court's judgment and the decision made by Judge Pagone of the Federal Court, it seems that this is one of those cases where a person has been prosecuted for sexually based offences that occurred decades earlier. The facts as recited in the written judgments suggest that the offences that prompted the visa cancellation had occurred about 38 years before the visa was cancelled: the most recent of the incidents giving rise to the prosecutions occurred in 1976, and it was not until 2012 that the visa holder entered his plea of guilty to the charges. 

Was it because the visa cancellation had its origins in conduct that had occurred so long ago that the Full Court saw fit to “set aside” the Minister's decision? Did the Court find that the long time interval between the conduct and the visa cancellation gave rise to some finding of “unfairness”? 

Actually, no. That issue did not even arise. 

So then, did the visa holder's long-standing ties to Australia prove to be his salvation? 

In this case, the visa holder was a person who came to Australia from England with his parents in 1951. His visa was cancelled in 2015, so he would have been in Australia by about 64 years by the time of the cancellation. He apparently had a long employment history, a partner of about 30 years standing, an elder sister and her family, five adult daughters, two adult children and over thirty grandchildren and step-grandchildren. 

No, the Minister had found that notwithstanding these ties to Australia, there was an unacceptable risk of harm to the Australian community, and the public interest in the protection of the community outweighed the countervailing factor of the visa holder's indisputably strong ties to Australia. 

And the Full Court's judgment did not turn on whether the Minister had properly balanced the competing considerations, for and against cancellation of the visa. 

What then, in the end, was the deciding factor? 

It turned out that it was the visa holder's health condition. These conditions included “cervical vertigo, spinal stenosis, right knee replacement, heart problem and pleural disease caused by asbestos”. 

A submission that was prepared for the Minister by Departmental officers had referred to these health conditions. In fact, the submission had stated that: “It is possible that in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention”. Indeed, the Minister had signed and dated the Departmental submission, so there was no question that information that the cancellation of the visa could lead to indefinite detention was before the Minister at the time that the Minister decided to cancel the visa. 

So what was the problem? Didn't this show that the Minister had taken the possibility of indefinite detention into account? 

Nope. Although the Minister's formal statement of reasons for cancelling the visa made reference to the visa holder's ill-health, it did not separately address whether his ill-health might preclude his return to the UK. 

And the Full Court held that since the Minister had not stated a finding in the statement of reasons itself concerning the issue of possible indefinite detention, the appropriate inference to draw from the Minister's silence was that he had not considered the matter to be material. 

The Full Court held, following precedents in earlier cases including Le v Minister for Immigration and Border Protection (which has previously been reviewed on this blog) and NBNB v Minister for Immigration and Border Protection, that where indefinite detention is a possible consequence flowing on from the cancellation of a visa, that prospect is a mandatory relevant consideration which must be taken into account when the visa cancellation decision is made. 

In this case, since the Minister had not made any reference to the possibility that cancellation of the visa could result in indefinite detention of the visa holder in the statement of reasons, the Court found that the Minister had failed to consider the matter. 

And the Full Court concluded that the failure to take this mandatory relevant consideration into account amounted to jurisdictional error. 

Thus, the outcome in this case, being the quashing of the Minister's decision to cancel the visa. 

And yet another court case that illustrates that things are seldom what they seem, until one drills down into the granular detail!

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