Shock. Dismay. Disbelief. Anger!
I experienced all of these emotions, and more, in relation to events in one of my cases that unfolded over the last week.
I had been assisting a client with submissions to the "Visa Applicant Character Consideration Unit" (who refer to themselves by the acronym of "VACCU") concerning a notice of intention to consider refusal of a partner visa on character grounds (My client served 6 months in prison for offences relating to the use of false identities, and he did "fail the character test" because he had been sentenced to 12 months imprisonment for these offences.
However, I came to know my client well while I was working for him, and it was very apparent to me that he had made genuine efforts to "turn his life around" so that he could remain in Australia and retain a parental role with his two young children (the offences occurred in about 2012 and my client has been working night shifts to earn money to create a stable financial future for his children since he was granted a Bridging Visa C in association with the partner visa application).
The week began with a panicked phone call from my client that the ABF had attempted to execute a search warrant at his residence for the purpose of taking him into immigration detention.
At the stage that the warrant was executed, I had not received any notification from the VACCU concerning the determination of his partner visa application.
So the scenario seemed mysterious and incomprehensible to me: to my knowledge, at the time that the warrant was executed by the ABF, my client was still the holder of a Bridging Visa C, and was thus a lawful non-citizen.
So in my view, there was no lawful basis for the ABF to take my client into detention.
I made enquiries over the course of last week, and was able to determine what had actually happened.
In fact, the VACCU had made a decision in mid-April 2018 to refuse the partner visa on character grounds.
However, that decision was not notified to me until after the warrant was executed.
Although my client remains "within time" to seek merits review of the refusal of his partner visa application, the reason that the search warrant was issued was due to section 501F(3). This section of the Act provides that when a decision is taken to refuse a visa application on character grounds, all other visas held by the person are cancelled by operation of law.
Therefore, upon the issuance of the decision to refuse the partner visa application on character grounds, my client's Bridging Visa C was cancelled "by operation of law" and he became an unlawful non-citizen, subject to mandatory detention.
Because visa cancellations become effective immediately, an appeal to the AAT against the refusal will not restore my client's visa status; he will remain an unlawful non-citizen until such time as his case is heard and decided by the AAT.
It was simply fortuitous that my client was not at home at the time of that the ABF attended his residence to take him into detention.
However, the refusal letter that was issued by the VACCU directs that my client "present himself to the Department", and when he does so, he will undoubtedly be taken into detention.
So in essence, at this stage my client is left with the choice of departing Australia pending the outcome of any AAT review, or being held in detention while awaiting a decision (which, given the current reality that his case is unlikely to be heard by the AAT in less than a year, means he will suffer the loss of his liberty for a period longer than he served in prison for the underlying criminal offence - and this is so even if it is ultimately found by the Tribunal that the VACCU wrongly refused his partner visa application (and thus wrongly effected the cancellation of his Bridging Visa C).
It strikes me that something is gravely wrong with this entire scenario:
First, that the ABF could take steps (executing a warrant) to take someone in detention before any notice was given that his partner visa application had been refused and that his Bridging Visa C had been cancelled;
Second, that the Department waiting until after the warrant was issued, and after I made enquiries, to issue notice of the refusal, even though the refusal decision had been made about a month earlier;
Third, that my client will have to effectively serve another "sentence of imprisonment" while being held in immigration detention pending an AAT decision - even though he has a right to seek merits review in the Tribunal concerning the correctness of the VACCU's refusal decision (thus my client's situation is different from the normal visa applicant who would continue to hold a bridging visa while remaining onshore to contest the refusal of a visa application).
It's my view that the Migration Act has operated in a way that is harsh and draconian, and that is inconsistent with fundamental common law concepts of natural justice and procedural fairness.
I am wondering if anyone else out there has seen a similar series of events, and what your "take" on this situation is.
I invite your observations in the comments section.