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Another Visa Cancellation Overturned, Yet Another Crack in the Wall!

Crack. Crack. Crack. Crack!

Is the entire edifice of visa cancellation on character grounds in danger of collapse?

Maybe, but probably not.

But in any event, over the past week or so, there have been a number of decisions from the Federal Court in which cancellation decisions made by the Minister personally have been quashed, or set aside.  That several such decisions have come in fairly quick succession is somewhat remarkable because in the vast majority of cases that have been brought in Federal Court, the visa cancellation decision has been upheld.

I would suggest that what has happened is that in the recently-decided cases, there have been flaws in the decision-making process that have made the cancellations vulnerable to challenge.

Whatever the case, just yesterday there was another decision, this time by Justice Steward in the case of Splendido v Assistant Minister for Immigration and Border Protection (No. 2) (2018) FCA 1158, in which a cancellation decision was reversed.

And when one reads the decision and becomes aware of the visa holder’s history of criminal convictions, it appears, at least initially,  somewhat surprising that the visa cancellation in this case was not upheld.

The circumstances of this case were that the visa holder was born in Italy and immigrated to Australia in 1967, when he was two years old. When the visa holder reached the age of 46 in 2011, having been involved in 3 different relationships which produced 6 children, he commenced committing a series of crimes which involved possessing and trafficking in drugs, threat to inflict serious injury, “endanger serious injury”; contravene  family violence order; intentionally cause injury; make threat to kill; and unlawful assault.

The only evidence concerning the visa holder’s criminal history that was before the Assistant Minister when the decision not to revoke the cancellation of the visa was the visa holder’s National Police Certificate which recited the list of criminal offences for which the visa holder had been convicted and the sentences that he had received for the various offences.

On the basis of this Police Certificate, the Minister nonetheless made findings that due to the visa holder’s “sustained offending over the last five years”, there was a likelihood that the visa holder would re-offend, and that further offences of a similar kind (being violence, drug and property related) could result in harm to members of the Australian community.

In reviewing the case, Justice Steward was not satisfied that there was a basis for the findings that there was a likelihood that the visa holder would re-offend in a way that would create a risk of harm to the Australian community – and consequently, concluded that the Assistant Minister had committed jurisdictional error in refusing to revoke the cancellation of the visa.

On the issue of whether there was a likelihood that the visa holder might re-offend, Justice Steward reasoned that it was unknown (on the basis of the Police Certificate alone) whether the crimes of violence of which the visa holder had been convicted (assault and intentionally causing injury) formed part of a pattern of behavior. Justice Steward also observed that it was also unknown whether the crimes of which the visa holder had been convicted constituted similar acts of violence involving the same or similar victims; whether they revealed a trend of increasing or decreasing degrees of violence; whether they were the product of the taking of drugs by the visa holder.

Likewise, on the issue of the likelihood of future harm to the Australian community, Justice Steward that the bare recitals of the visa holder’s convictions and sentences that were contained in his Police Certificate were insufficient in and of themselves to support a finding concerning the likelihood of harm

Although this decision is “only” that of a single judge of the Federal Circuit Court, it does have potentially broad ramifications in that it suggests that a Police Certificate standing by itself is not a sufficient basis on which a finding can be made that a visa older is likely to re-offend or that if the visa holder does re-offend it is likely that harm will be caused to the Australian community.

There this exists a possibility that if this line of reasoning is applied to other visa cancellation cases, the Minister’s findings may be vulnerable to challenge.

And the cracks in the wall that this decision seems to represent may topple the wall altogether.

We shall see! 

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