by Paul Cutler | Mar 21, 2023 | Uncategorized
I realise the new Ministerial Direction 99 commenced on 3 March 2023 and there have been lots of newsletters about it. The most important changes are that long term residents are going to be treated more leniently. This is one area where character cancellations can be very unfair and it’s good to see some reform. The major changes are that:
- the strength, nature and duration of ties to Australia has been added as a primary consideration in paragraph 8;
- Paragraph 5.2(5) has been inserted into the principles to be applied: “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“; and
- the old 8.3 is replaced with a new 9.4.1. The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right toremain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
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by Paul Cutler | Mar 8, 2023 | Uncategorized
Minister for Immigration, Citizen v McQueen [2022] FCAFC 199 is not the first case that I have blogged about where the underlying issue is whether the Minister, when exercising his personal powers under section 501CA (4) of the Migration Act had failed to give any proper, genuine, or realistic consideration himself to the Applicant’s representations. In the other case, 11 minutes was insufficient time to properly consider to making a fresh cancellation decision after a judgment was delivered.
In McQueen’s case the primary judge had concluded that the Minister had not personally understood Mr McQueen’s representations because he had only read a summary provided to him in a departmental decision. The Minister appealed, contending that consideration of briefing materials from departmental officers was sufficient.
On Appeal, the Full Court found that the Minister was directed to “sign here” by stickers on the brief and did not exercise sufficient personal consideration in his decision. There is an interesting photograph from the Court book which is extracted in the judgment (at [23]). it appears to show McQueen’s file on the Minister’s lap in a car. The Full Court held that when a minister chooses to exercise their powers under section 501CA (4) personally, it is the ministers state of mind about the persuasiveness or lack of, of the representations which govern the statutory task. The ‘deliberative persuasiveness’ cannot be delegated.
Following the judgment in December, it has been reported in the media that government intends to seek leave to appeal the High Court. At the time of writing this post, I don’t know the outcome of that application. Watch this space.
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by Paul Cutler | Feb 20, 2023 | Uncategorized
I have previously blogged about Ms Pearson’s first Full Court case. Her first attempt to have the decision to cancel her visa on character grounds revoked failed.
In a very unusual step, she filed a second application some 7 months later (in October 2022). One of her new arguments was that her visa shouldn’t have been cancelled because she hadn’t been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)). If that was correct she didn’t have a substantial criminal record.
Although it sounds pedantic, Ms Pearson had in fact been sentenced to an aggregate sentence of 4 years and 3 months for 10 offences. The effect of an aggregate sentence is that an offender is only given indicative sentences for the individual charges. Indicative sentences are not able to be appealed.
The Full Federal Court agreed with Ms Pearson and found that the proper construction of section 501(7) was that a term of imprisonment was not the same as an aggregate term of imprisonment. In fact (at [47]): “had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so.”
In an interesting postscript to this decision, parliament has now decided to “say so”. The Migration Amendment (Aggregate Sentences) Act 2023 (the Aggregate Sentences Act) came into effect on 17 February 2023.
The Aggregate Sentences Act retrospectively validates past decisions that would otherwise have been invalid because of the Pearson decision, but in some circumstances restores review rights in applicants are still within the relevant timeframes.
It is worth checking the details if your visa has been cancelled on the basis of an aggregate sentence.
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by Paul Cutler | Jan 27, 2023 | Uncategorized
How hard can it be to make a valid application to the AAT?
You might be forgiven for thinking that section 29(1)(c) of the AAT Act which says that an application “must contain a statement of the reasons for the application”, is clear.
Despite Mr Miller’s application not containing the reasons (which was agreed), a copy was later provided when the AAT requested it. That request came outside the 9 days timeframe allowed for lodging reviews of character cancellation matters.
The AAT proceeded to review his matter and affirmed the cancellation decision.
Miller appealed to the Federal Court. The Minister took the point that the AAT lacked jurisdiction because of non-compliance with s 29(1)(c) but accepted that there would otherwise be a jurisdictional error in the AAT decision. Derrington J found that 29(1)(c) was mandatory and dismissed the appeal.
In the Full Federal Court, Miller argued (for the first time) that writing the words “non-revocation of a visa cancellation” on the application form (he had used the incorrect form) was a sufficient statement of reasons. His appeal was dismissed, but not before the Full Court had considered:
- Project Blue Sky – whether “must” is mandatory will depend on statutory context;
- the other sub-sections of s29(1), finding that (a) (application in writing) and (d) (decision document shall be lodged in prescribed time) were mandatory , but that (b) payment of the fee, was not. The latter is because of sections 69C(1) and 70 which deal with timeframes for what happens if fees aren’t paid;
- s29(7)-(9) in relation to extensions of time; and
- s29AB being the AAT’s power to request amendment of the application.
In short, the Full Court agreed that 29(1)(c) was mandatory.
I come back to where this story started. Although mistakes can be made (apparently), it’s really not that hard to follow section 29 and make a valid application. You can read the Full Court decision here.
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by Paul Cutler | Dec 7, 2022 | Uncategorized
Visa cancellations on national security grounds are rare and they often raise complex issues at the intersection of procedural fairness and secret information. SDCV v Director General of Security [2022] HCA 32 was not an exception.
In 2018 (after his citizenship application was approved but before the ceremony), ASIO found that SDCV was a security risk as he had links to terrorism and had used a covert phone for some of his communications. His visa was cancelled and he unsuccessfully sought review in the AAT. The AAT conducted a partly closed hearing (without SDCV) and some “certificated” information was not disclosed to him. Open reasons affirming the decision were published along with separate “closed” reasons which were not disclosed to SDCV.
SDCV didn’t seek judicial review of the AAT decision but instead appealed the matter to the Full Federal Court under s44 AAT Act. This raised the issue which took the case to the High Court namely, whether 46(2) AAT Act was invalid. Section 46(2) says the Court will “do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”.
The High Court judgment is complicated and in the context of the short and informal nature of this blog, all I can do is give you a brief “executive summary”. There will undoubtedly be much ink spilled over this case if you are looking for something more detailed.
Whether or not 46(2)was invalid or not depended on whether there was a requirement of a minimum level of procedural fairness. This has been something which has been the subject of academic debate for a long time and it was my view (until now, at least) that procedural fairness can’t be totally excluded. However:
- The plurality (joint judgment of Justices Kiefel, Keane and Gleeson) said there was no minimum requirement and there was no practical injustice to SDCV. Amongst other things the balance of open justice/national security is a matter for the legislature and the impartiality of the Court was not affected;
- Justice Steward agreed that there was no universal baseline requirement but said it would only be in rare circumstances where a fair opportunity to respond would not be given. His Honour noted that there were a number of steps open to the Court (which were not taken) to ensure fairness including appointing special advocates or by disclosing confidential information to the lawyers only; and
- There were three dissenting judgments (Justices Gaegler, Gordon and Edelman) who each published separate reasons and found that 46(2) had compulsorily excluded fairness and was invalid.
I certainly don’t think of myself as a constitutional law expert but this decision appears to me to be out of step with how I understood there was a minimum standard of procedural fairness which could not be excluded. However, for now at least, procedural fairness can be excluded. It will be interesting to see how this develops in future cases.
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I realise the new Ministerial Direction 99 commenced on 3 March 2023 and there have been lots of newsletters about it. The most important changes are that long term residents are going to be treated more leniently. This is one area where character cancellations can be very unfair and it’s good to see some reform. The major changes are that:
