National Interest

by Paul Cutler | Aug 15, 2023 | Uncategorized

The Minister has to be satisfied that: “the grant of the visa is in the national interest” (clause 790.227 of Schedule 2 of the Migration Regulations) before granting a Safe Haven Enterprise visa

In ENT19 v Minister [2023] HCA 18 the applicant was an Iranian gentleman who had been convicted of people smuggling (section 233C Migration Act). He was sentenced to 8 years in prison. Notwithstanding that problem he was otherwise found to have met the requirements for a protection visa. It was accepted that he was not of good character.  However, the basis for the  visa refusal was not meeting the national interest (790.227) requirement.

The appeal was brought in the original jurisdiction of the High Court. There was a narrow 4:3 majority judgment in favour of the Applicant.

In the decision making process,  the Minister expressly decided that PIC 4001 was satisfied (i.e. exercised her discretion not to refuse the visa even though the character test was not met). In addition, the Minister also disavowed any reliance on 501(1) (the Minister’s discretion to refuse the visa on character grounds).

The majority (Gordon, Edelman, Steward and Gleeson JJ) found that in those circumstances, “something extra” (apart from the obvious character issues) would have to be relied on for a finding that the visa grant wasn’t in the national interest. This is effectively saying the Minister can’t have it both ways. The following two extracts from the majority judgment make that clear:

[97] Clause 790.227 was not intended to be a trump card for the Minister or delegate to use to refuse a visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to that decision.

And

[106] Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power.

The appeal was successful and the refusal decision was quashed. The matter was remitted to the Minister to be determined by law.

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Irrelevant Consideration

by Paul Cutler | Jul 26, 2023 | Uncategorized

Was it an irrelevant consideration to take into account juvenile offending when deciding to revoke a character cancellation decision? In Minister v Thornton [2023] HCA 17, a majority of the High Court found that it was.

Mr Thornton came to Australia from the UK as a 3 year old. By the time he had turned 16, he had been found guilty of a number of offences (including assault/obstruct police officer) in the QLD Children’s Court. His bad behaviour (more assaults) continued after he turned 18 and inevitably his visa was cancelled.

The issue which took the matter to the High Court was the intersection of the Youth Justice Act 1992 (QLD), the Crimes Act and s501CA of the Migration Act. Under the Youth Justice Act, Mr Thornton was taken to have never been convicted of an offence as a child under QLD law.

It was clear that in assessing whether he was an unacceptable risk to the community, the Minister had taken the childhood offending into account.

One interesting feature of this case, is that it appears that the issue of childhood offending was raised by Mr Thornton. Gordon and Edelman JJ (at [47]) noted that the Minister was required to consider Mr Thornton’s representations (which included reference to childhood offending). However, that didn’t prevent it being an irrelevant consideration which resulted in an error of reasoning.

Gageler and Jagot JJ (at [37]) found that considering the childhood offending was both impermissible and material in the sense that the decision might have been different if it hadn’t been considered.

Steward J’s dissent was based primarily on a different construction of the Crimes Act. However, his Honour also referred to Viane as authority for the proposition that there may be few mandatorily irrelevant matters that the Minister must not consider.

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Giving of documents

by Paul Cutler | Jun 27, 2023 | Uncategorized

The giving of documents to a visa holder which relate to the cancellation of their visa is more complex than it might seem.

Basically the options are by giving notice under section 494A (using one of the methods in s 494B) which then enliven the deeming provisions in s 494C. The other alternative is rely on regulation 2.55(3)(c) and the deeming in reg 2.55(7).

There are some subtleties in the requirements of those sections including the difference between an address “known to” and one “provided to” the Minister.

The argument that regulation 2.55 was inconsistent with 494A (and therefore invalid) failed in Minister v EVE21 [2023] FCAFC 91. However, Perram J did accept that in some circumstances (just not the current one) there would be inconsistency. There have been other cases where this inconsistency and invalidity have been argued with mixed success.

The other interesting argument in the case were about whether a prison’s PO Box is the PO Box of the prisoner? It is. There was also a brief discussion about whether a prison can be a residential address. Some of the UK cases suggest that there is an element of “voluntary” in determining someone’s residential address.

It’s always a good idea with these cases to check if the service provisions have been complied with.

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New Direction 99: Visa refusal and cancellation under s 501

by Paul Cutler | Jun 13, 2023 | Uncategorized

A new Ministerial Direction No 99 (visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa) commenced on 3 March 2023. This Direction replaces Direction 90.

Under the old Direction 90 the strength, nature and duration of ties to Australia were considered under other considerations, under this new Direction 99 this has now been added as a primary consideration under Part 2 Section 8, with the effect that these considerations should generally be given more weight by decision-makers.

The principles under Subsection 5.2 have also been amended with the following paragraph added under 5.2(5):

With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

I have previously blogged about being an alien by “the barest of threads“. I borrowed that title from an academic paper which looked at the position of Stefan Nystrom (who had lived in Australia since he was four weeks old, but who was nevertheless sent back to Sweden, a country with which he had no connection).

Hopefully the new direction will help some of these long term residents who are effectively “home grown” problems despite their foreign citizenship.

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Recusal Application

by Paul Cutler | May 30, 2023 | Uncategorized

Recusal applications can be awkward and difficult. It is not easy to tell a judge that there is a perception that he/she is baised and shouldn’t sit in judgment on a particular matter. Recusal applications don’t occur very often and applications involving multi-member appellate are even rarer. Consider the following facts:

1. Prior to his appointment to the Federal Court, Bromwich J held the office of Commonwealth Director of Public Prosecutions;
2. Bromwich J was one of a 3 member Full Court in the matter of QYFM;
3. A few minutes before the hearing was due to begin, his Honour sent an email to the parties informing them that he had appeared for the Crown against the current applicant in an unsuccessful appeal against conviction in the Victorian Court of Appeal;
4. When the hearing commenced, the Applicant’s counsel made an oral application for Bromwich J to disqualify himself;
5. The Full Court briefly adjourned and when it resumed, McKerracher J invited Bromwich J to “deal with the application”. His Honour did not recuse himself and the hearing went ahead.

The Applicant appealed to the High Court (see QYFM v Minister for Immigration [2023] HCA 15). There were two issues. Firstly, was there a reasonable perception of apprehended bias? The High Court considered the relevant law (see Ebner’s Case). The Court found: “His Honour’s appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. “.

The second issue was how should a multi-member court deal with such a recusal application? The short answer is that it is a matter for the “whole court” (not just the individual judge concerned) to decide. Because these facts are very rare there is a very interesting discussion about how similar matters are dealt with in other jurisdictions and what can be learned from existing Australian authority.

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Superseded Visa

by Paul Cutler | May 17, 2023 | Uncategorized

Earlier visas will be superseded by the grant of subsequent visas under s82 Migration Act. Consider the following chronology (no, not my client):

The 2015 student visa application was refused because the applicant didn’t hold any of the relevant visas listed in 572.211(2) (or any visa at all).

The argument that made it all the way to a Full Court was about when his visa “ceased to be in effect” (s82(2)). The Applicant drew an analogy with Lesi v Minister for Immigration [2003] FCAFC 285 and argued that his ETA was somehow “reactivated” on the lapsing of his visitor visa.

Mr Lesi was a permanent resident until his deportation (so, under 82(4) his visa ceased to be in effect). However, when the deportation order was set aside its operation was spent (i.e. it had no effect on the visa held by the person at the time). In those circumstances Mr Lesi’s permanent residence was revived.

Unfortunately for the Applicant in Oraha v Minister for Immigration [2023] FCAFC 21, Lesi had no applicationto the facts of his case and his: “construction of s82(2) of the Act cannot be accepted. Section 77 of the Act, read with the definition of “visa period” in s5, makes plain that, firstly, there is a visa period and, secondly, the visa period has a beginning and an end. This does not envisage that there are, or can be, multiple “beginnings” and multiple “endings”, or that, once the visa period ends, the visa can, somehow, be revived. Section 77 also makes plain that, once the visa period ends, the non-citizen is no longer the holder of that visa. In our respectful view, nothing could be clearer.”

How many times over the years have I advised clients to withdraw redundant applications? It can be very important.

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