Australian Immigration Daily News

We have very recently had a (lively!) debate on this blog about whether the Migration Act “tramples” on “common law” rights.

Coincidentally or not, there has just been a decision from the Federal Court which reinforces the concept that the requirement for “procedural fairness” is one of the basic cornerstones of the Act.

(As regular readers of this blog may recall, the failure to provide procedural fairness is one of the very few grounds upon which a decision by the Minister to cancel a visa on character grounds may be overturned).

The case – Anoorthum v Minister for Immigration and Border Protection (2016) FCA 277 – involved an application for judicial review of a decision by the Assistant Minister to refuse an application for a Skilled Residence visa on character grounds.

The background of the case was that the visa applicant had originally arrived in Australia from Mauritius on a student visa. The applicant and his wife had three children. In 2012, the applicant was involved in a “road rage” incident, and, two years later, in 2014, he was convicted in the County Court of Victoria of the offence of “stalking another person and threatening to inflict serious injury”. He was sentenced to a term of imprisonment of 8 months, ordered to undertake unpaid community work through a community corrections order and was also required to submit to assessment and treatment for alcohol abuse, violence and mental health.

Following the conviction, in February 2015, the Minister issued a “Notice of Intention to Consider Refusal” of the applicant's application for the Skilled Residence visa on character grounds. The “NOICR” advised the applicant that he could present comment and information concerning whether his visa should be refused within 28 days.

The applicant took advantage of the opportunity that he was given through the NOICR, and sent a detailed letter to the Department which put forward his reasons why the visa should not be refused.

Thereafter, an “Issues Paper” was prepared which included details of the applicant's immigration history, his visa application and his conviction in the Victorian County Court.

However, the letter that the applicant had sent to the Department, containing his submissions concerning the reasons why his visa application should not be refused, was not provided to the Assistant Minister with the Issues Paper. Moreover, the Assistant Minister was not informed of the existence of this letter.

The Assistant Minister then proceeded to refuse the visa application, and the applicant challenged her decision in the Federal Court.

The primary basis of the challenge was the applicant's claim that he had been denied procedural fairness due to the Assistant Minister's failure to consider certain materials, including, most importantly, the letter setting forth the applicant's submissions concerning the reasons why his application should not be refused.

Before the Court, the Department argued that the failure to provide the Assistant Minister with the applicant's submissions did not rise to the level of “jurisdictional error”, because the Assistant Minister had allegedly been provided with other documents which were said to include all of the information which the applicant had put in his submissions (for example, information that the applicant did not have a prior police record in Mauritius, that he had worked for banks in Mauritius before coming to Australia as a student, etc.)

In essence, it was the Department's submission to the Court that “the Assistant Minister was provided with all the information that was otherwise referred to in the applicant's submissions, so it was of no consequence that the Assistant Minister was not given a copy of the applicant's submissions before she determined to refuse his visa application.

And what was the Court's reaction to this submission from the Department? In a word, “not good enough”!

The Court held that the Assistant Minister's power to refuse a visa on character grounds is subject to the underlying requirement that the power must be exercised in accordance with principles of procedural fairness. Therefore, the Court ruled that it “is a basic and fundamental requirement of procedural fairness that a person in the applicant's position should be provided with an opportunity to make his or her case”. Thus, in the Court's view, it was a matter for the applicant to decide what information and what submissions should be put to the Assistant Minister; to decide what pieces of information he thought might evoke a favourable response from the Assistant Minister; to decide which passages from the documents he wished to highlight and ask the Assistant Minister to take into account; and to determine what submissions he wished to put to the Assistant Minister.

Therefore, the Court ruled that as a matter of basic procedural fairness, the visa applicant was entitled to have his own submissions concerning the reasons why his visa should not be cancelled placed before the Assistant Minister and considered by her before a decision was made concerning his application. The Department's failure to accord the applicant this fundamental procedural right was found by the Court to be jurisdictional error. So as a result, the Court found it appropriate to “quash” the decision of the Assistant Minister refusing the visa application.

The basic lesson to be taken from this case is that whenever an opportunity to make comment or provide information is provided to a visa applicant or visa holder before a decision is made, the person's own submissions (concerning the reasons why a visa should not be refused or cancelled) must be given to the “decision-maker” and must be taken into account. Even if the information that the person wants to have considered is available to the decision-maker through other means (other documents) that does not excuse the failure to allow the person to make her or his own case as she or he sees fit, and to make sure that the person's own submissions are made known to the decision-maker, and are taken into account.

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