Australian Immigration Daily News

Can the manner in which the Australian government wields the power of visa cancellation be fairly described as being harsh, cruel, disproportionate, unforgiving and indeed mindless?

You be the judge after you consider a case that was decided late last week by Justice Markovic of the Federal Court, Kemp v Minister for Immigration and Border Protection (2018) FCA 1109 (27 July 2018).

Perhaps at first blush you might consider that this visa holder, a New Zealand citizen in Australia as the holder of a Special Category Subclass 444 visa, “deserved” to have his visa cancelled.

After all, he was in fact arrested for being involved in the supply of a prohibited drug. After having his original sentence of 11 years imprisonment with a non-parole period of 8 years quashed as being “manifestly excessive”, he was resentenced to five years with a non-parole period of 3 years.

The visa holder had originally come to Australia at the age of 28. He worked in the agricultural sector in Australia for 18 years, from 1993 to 2011, working as a shearer at farm stations and undertaking general farm work. His ability to work declined because of the demands of his job; he was in a car crash, and although in pain, he continued to work. He also developed “shearer’s back”. As a result of being in pain, he gradually drifted out of the work force. He then lost an eye and became indebted.

As if this litany of woe is not long enough: at the time of his offending, the visa holder was without employment, without accommodation, and living in his car with his dogs?

Would you consider that his continued presence in Australia posed a “risk of harm to the Australian community”?

Consider then the following:

While he was in prison he suffered a series of serious medical conditions for which brain surgery was ultimately required. Subsequently, he was re-admitted to the hospital after being found unconscious in his room foaming at the mouth; he later suffered a stroke and a “code blue” period of unresponsiveness that lasted for between 30 seconds and a minute; he later had further brain surgery to remove abscesses. 

As a result of all of this, he was required to wear a helmet to protect his brain, suffers from constant seizures and has a lack of feeling in his arms due to nerve damage.

And, he was described as experiencing “cognitive slowing, reduced attention and concentration, poor learning and memory, expressive language difficulty and executive dysfunction”.

Nonetheless, the Assistant Minister found that he was unable to come to a conclusion that the visa holder did not pose a risk of re-offending (!!!!!) as it was possible that he could be “susceptible” to the influence of others, and his rehabilitation had not been “tested in the community”.

Very fortunately, in my opinion, Justice Markovic found that the decision to cancel the visa was illogical and irrational, because the Assistant minister had based his opinion on the likelihood of his re-offending based on his past conduct, notwithstanding that the grave maladies that he had suffered since being convicted had fundamentally changed his personal attributes and characteristics.

In my view, if this case weren’t so tragic and cruel, it wouldn’t pass the “laugh test” – and you have to wonder if the Minister and Assistant Minister are doing anything more when they exercise visa cancellation powers than simply “ticking the box”, and failing to consider the nuances of individual cases.

And you have to wonder how many visa cancellations are vulnerable to challenge on the basis that the decision-maker failed to give genuine, proper and realistic consideration to the merits of the case.

So, is the visa cancellation power sometimes exercised improperly, and in a heartless way?

I put before you this case as “Exhibit A”.