Australian Immigration Daily News

Over the years that I have been writing commentary on Federal court decisions for Migration Alliance, we have seen that as part of its operations, the Department has been running a small “cottage industry” focused on the cancellation of visas on character grounds.

And we have also seen that it has largely been extremely difficult to challenge decisions made personally by the Minister either to cancel a visa on character grounds, or to refuse to revoke a cancellation on character grounds.

This is so because the scope of review in the Federal courts is limited to whether the Minister’s decision has been affected by jurisdictional error.  Visa cancellation decisions made personally by the Minister are not subject to “merits review”, in contrast to cancellation decisions made by a delegate of the Minister, which are reviewable in the AAT. But when the Minister determines to exercise his personal powers to set aside a decision of the AAT, again such decisions by the Minister are not subject to merits review, but can only be set aside on the basis of a jurisdictional error.

We have also seen that the Federal courts have accepted that the Minister has a substantial unrestricted sphere of “decisional freedom” in determining whether or not to cancel a visa, or to refuse to revoke a cancellation.  So long as the decision has been made “in accordance with law”, the courts will not simply “second-guess” a decision of the Minister, nor will they substitute their own discretion on the merits of whether a visa should or should not be cancelled.

And so, in cases like Eden  and Stretton, where a single judge of the Federal Court (Justice Logan) has found that the exercise of the visa cancellation power has been “disproportionate” to the underlying criminality and risk of harm to the Australian community, to the extent that it was described as “cracking a nut with a sledgehammer”, we have seen the Full Court reverse those decisions, emphasizing that it is not the role of the courts to assess the merits of a case.

Consequently, it is commonly the case that when the Minister determines to cancel a visa on character grounds, the visa holder has slender chances of getting such a cancellation set aside – even in cases where the visa holder has lived in Australia for decades, since early childhood, has strong family ties to Australia, has not spent any significant time in his country of nationality, and would face significant impediments (homelessness, inability to find employment due to language barriers, etc.) if the visa cancellation is upheld and is thus forced to return to the country of nationality.

Further: as visa cancellation decisions become effective immediately, it is often the case that the visa holder may be held in immigration detention for a lengthy period of time (months or years) while a challenge to the decision makes its way through the courts.  Often, a visa holder may be in immigration detention for a longer period of time than the original criminal sentence.

However, just since the beginning of August, we have seen two decisions come out, the Taivei  case covered in yesterday’s post, and now, the case of Viane v Minister for Immigration and Border Protection (2018) FCAFC 116, where visa cancellations have  been successfully challenged.

These cases do show that there are, however rare and however difficult, there is a small “crack in the (seemingly insurmountable) brick wall” where unusual outcomes can be achieved.

So what happened in the Viane case?

On first reading, you might think that the case looked “hopeless”.

After all, the underlying offence that led to the visa cancellation was that the visa holder, while under the influence of alcohol and drugs, used his partner’s vehicle to drive through the closed garage door of her home, then gained entry to the house through an internal door, and, while attempting to take his infant daughter form his partner’s arms, punched her in the head.  The sentencing judge who heard the visa holder’s criminal case described the offence as being at “the upper end of assault occasion actual bodily harm”.

So, on what basis was the visa cancellation decision in Viane set aside?

The visa holder was a citizen of both Samoa and New Zealand, and, after being invited to make representations as to why the cancellation should be revoked, had made submissions that if the cancellation was not revoked, his partner and their young daughter might choose to re-locate back to Samoa with him, where the daughter might face impediments in the form of lesser educational and other opportunities than would be available to her in Australia. 

The Court found that the Assistant Minister had failed to consider this matter when he was evaluating whether or not to revoke the cancellation of the visa.

And it held that when deciding whether to revoke a cancellation decision, the Minister or Assistant Minister must not overlook significant matters that are raised by the visa holder in the representations made in support of revocation.

So, the lesson of Viane, and of yesterday’s case, Taivei, is that when it can be demonstrated that the Minister has either failed to consider, or has not given genuine, proper and realistic consideration to a matter stated in representations as to why the cancellation should be revoked, then there is an opening to successfully challenge the cancellation decision.