Paul Cutler's Migration Law Blog

(for posts older than September 2014 refer to www.paulcutler.blogspot.com

Interpreted generously but…

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was evidence that he was rehabilitated from his drug addiction (which caused some of his prior offending) and he had the support of his wife and 3 Australian citizen children.

The case highlights the importance of identifying a jurisdictional error and not merely challenging the merits of the underlying decision (which is an impermissible in judicial review). Mr Tran was not legally represented either before the primary judge or in the appeal court. Even though the Court noted that subject to procedural fairness, poorly cast grounds of appeal (especially by self represented litigants) should be interpreted generously.

Nevertheless there was disagreement between the judges as to the ground of review being relied on. Greenwood J was prepared to find there had been a jurisdictional error because the delegate had not given “proper consideration” to the claim that being drug free since 2004 made future offending unlikely. However, Charlesworth and O’Callaghan JJ treated the same argument as being based on legal unreasonableness. Their Honours found that there was an “evident and intelligible” basis for not ruling out the risk of future offending (i.e. the decision was not unreasonable). Accordingly, Mr Tran’s visa remains cancelled and he will now have to return to Vietnam.

Logical Connection

 

There are only very limited grounds on which fact finding can be challenged on a judicial review application. This is highlighted by MZZGE v Minister for

Home Affairs [2019] FCAFC 72. In that case, the Applicant (pregnant with a second child) said she would be forced to have an abortion and be sterilised if returned to China. It was also claimed she would face various societal pressures in their hometown in Fujian province including because their daughter would be considered ‘early born’ and a ‘black child’, resulting in no entitlements to social benefits or welfare.

Although it was factually accepted that forced sterilisations do occur,  the Tribunal found there was insufficient evidence to show this was a risk to the Applicant. The Applicant’s argument was that this conclusion was irrational. Unfortunately, for a factual decision to be a jurisdictional error, you have to show:

  1. no rational or logical decision-maker could have arrived at the decision on the same evidence; or
  2. there is no logical connection between the evidence and the inferences drawn; or
  3.  there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion.

The appeal was unsuccessful. Interestingly, the Applicant did not argue any ground of appeal that the Tribunal had misunderstood the “real chance” test (an important concept in the law of protection visas). Perhaps she should have?

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Active Intellectual Process

It is a principle of administrative law, that decision makers must give ‘proper, genuine and realistic consideration to the merits of the case’ before making their decision. If they fail to do so, the decision will be “infected” with jurisdictional error and be liable to be set aside by the court.

Mr Chetcuti (a 73 year old Maltese man who arrived in Australia at the age of two) was a convicted murderer serving a sentence of 24 years imprisonment. Shortly before the expiry of his sentence, the Minister cancelled his visa on the basis that Mr Chetcuti did not meet the character test. Mr Chetcuti sought judicial review of this decision. The Minister consented to the first decision being quashed. The Department then put in train a process which would allow the the Minister to make a fresh cancellation decision. The following events occurred on the morning of 14 August 2017:

  • At 9:16 am, 130 pages of documents relating to the decision were placed on the Minister’s desk
  • At 10:14am, the Minister is notified that the first cancellation decision has been quashed by the Court
  • At 10:25am, the Minister makes a fresh cancellation decision pursuant to sections 501(6)(a) and 501(2)(c) of the Migration Act

Mr Chetcuti then sought judicial review of this second decision on the basis that the Minister did not provide ‘proper, genuine and realistic consideration to the merits of the case’. He was unsuccessful at first instance but on appeal, the Full Court ( Chetcuti v Minister [2019] FCAFC 112) accepted the argument that the Minister had spent no more than 11 minutes considering the material before making a decision, which was an insufficient time to allow an ‘active intellectual process’ to be applied. Accordingly the second decision was quashed. 

The case is also interesting in that it considers how “Jones v Dunkel inferences” can be drawn when there is no evidence from the Minister or his staff as to what actually happened in the office on that morning. I am unsure what will happen to Mr Chetcuti next, but it may be a case of “3 strikes and he’s out”. 

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Lodgement and Bounced Emails

The recent Full Federal Court case of Russell v Minister for Home Affairs [2019] FCAFC 110, demonstrates how the lodgement of review applications by email can be fraught with problems. The basic facts are:

  1. Ms Russell (a NZ citizen) was in prison and had her visa cancelled on character grounds (s 501(3A) Migration Act);
  2. On 24 August 2018, her application for a revocation of that decision (s 501CA(4)) was unsuccessful and she was notified of the decision on 27 August when documents were delivered to her;
  3. She then had 9 days from that date to lodge a review application in the AAT (s 500(6B));
  4. On 31 August, she lodged a review application with the AAT by email;
  5. Unfortunately, about 10 minutes after she logged off, the AAT server “bounced” her email because “message size exceeds fixed limit”;
  6. Even more unfortunately, she didn’t see this message until 6 days later when she next logged on. She promptly then resent the email. However, she was 1 day out of time and the AAT determined it had no jurisdiction;
  7. She was unsuccessful in a review application in the Federal Court and she appealed to a Full Court.

Her basic argument was that the “bounce message” was generated by the AAT server and that her email had come within the “information system” of the AAT. Unfortunately (again), s14A Electronic Transactions Act, says that email is received when it is “retrieved by the addressee at an electronic address designated…”. This argument was rejected because there is no reference to “information system” in s 14A (only in the s 5 definitions) and because her message wasn’t retrieved at an electronic address.

The Full Court also observed that Ms Russell’s circumstances were unfortunate. She was required to include the delegate’s 130 page decision with the application which caused the file size problem. Despite no guidance being given to her about file size limits, her arguments were nonetheless rejected.

I have had previous cases where clients have sought to challenge the fairness of notifications provided by email. This can be a difficult area. Please contact me if you would like to discuss your particular circumstances.

Time limits and Schedule 3

What happens if your visa expires and you find yourself unlawfully present in Australia? Apart from leaving the country, the range of further visa options open to you are severely limited. The general rule is that you need to have a valid visa to make a valid application for another visa.

Two of the exceptions to that rule are a spouse visa or a visa to allow for medical treatment. Both of those require applicants to comply with “Schedule 3” of the Migration Regulations, and that effectively means the application needs to be made within 28 days of the expiry of the previous visa.

A recent decision of the Full Federal Court makes it clear that schedule 3 means what it says for medical treatment visas (see Ahmad v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200).

In relation to spouse visas schedule 3 can be waived if there are compassionate and compelling circumstances. Please contact me if you need advice on these issues.

New TSS Visa

The changes which were foreshadowed last April were finally implemented in the early hours of Sunday 18 March 2018 (after the regulations were released last Friday). There is now a new Temporary Skills Shortage (subclass 482) visa and there have also been changes to the ENS visa.

Basically:

  1. there are less occupations available and they have been divided into “short term” and “long term” needs list. That division of short/long term is also reflected in two different streams of the TSS visa;
  2. visas will only be granted for 2 years in the short term stream and 4 years in the long term stream;
  3. applicants who want to transition to permanent residence will need 3 years (not 2) working on the TSS;
  4. there will be stricter requirements for trying to find a local person to do the job (i.e. labour market testing will be more stringent) – see IMMI 18/059
  5. there will be more onerous English language requirements – see IMMI 18/032;
  6. the legislation to impose a “training levy” (instead of the current benchmarks) has currently not passed parliament, but in the meantime the training requirements are set out in  legislative instrument IMMI 18/017;
  7. there have also been changes to income threshold, annual earnings and new concept of Annual Market Salary Rate – see IMMI 18/033;

For a more detailed summary of the changes, one of the better places to look is the DHA skilled visa newsletters which are published on its website.

I am of course happy to help with any specific questions.

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Character Cancellation

Visa cancellations based on the character grounds can often seem harsh in their application. Last week the High Court had to consider a case involving a gentleman from Malta who arrived in Australia as a 3 year old and who had lived here for 60 years. In that case the argument was that section 501(3A) Migration Act was constitutionally invalid because cancellation would result in immigration detention and that was effectively a used of judicial power (to imprison) by the Minister which is not permitted under the doctrine of separation of powers. The court was unaniomous in rejecting the argument. In my view Justice Nettle summarised the position neatly:

Given that the plaintiff came to this country as a three-year-old child more than 60 years ago, it might be thought that whatever risk he now poses to the safety and welfare of the nation is one that the nation should bear.  In general, however, it is for Parliament to select the “trigger” for legislative consequences and especially so in the case of deportation.  It is not the role of this Court to say that the criteria of deportation are overly harsh or unduly burdensome or otherwise disproportionate to the risk to the safety and welfare of the nation posed by the subject non-citizen remaining in this country.  Contrary to the plaintiff’s submissions, there is no constitutionally guaranteed freedom from executive detention such that legislative provisions for the deportation of non‑citizens and their consequent detention must be justified as appropriate and adapted or proportionate to a non‑punitive end.  At least in this context, proportionality analysis of the kind essayed in McCloy v New South Wales and more recently applied in Brown v Tasmania has no role to play.

For the whole case have a look at: Falzon v Minister for Immigration and Border Protection [2018] HCA 2

If you have any cancellation issues, I’d be happy to try and assist.

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New Zealanders

Good news for NZ Citizens who were usually resident in Australia prior to 19 February 2017. There is now a special “New Zealand stream” in the skilled visa category. Full details are in the Minister’s press release. However, at the time of lodging the application, they must have resided in Australia for at least five years.

They will also need to meet certain criteria, including contributing to Australia, demonstrated through income tax returns which show taxable income at least equivalent to the Temporary Skilled Migration Income Threshold (TSMIT) for the qualifying period and meeting mandatory health, character and security checks.

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De-regulation

On 21 June 2017, the Migration Amendment (Regulation of Migration Agents) Bill 2017 was introduced into the House of Representatives. One of the purposes of the bill is to remove the requirement that lawyers who provide migration advice have to be registered as migration agents. In fact the effect of the legislation (if passed) will be that lawyers will not be permitted to be separately registered.

There are some other changes relating to the registration of agents as well. The text of the bill and the explanatory statement can be found on the parliamentary website.

This change will affect me, but not the services I provide. I currently have a practising certificate from the NSW Bar Association and am also registered as a migration agent (0101077).

Training Benchmarks

One of the changes made to the ENS (and temporary working visa) is the replacement of the training benchmark with a “flat fee”. Over the years collating documents to show compliance with the training benchmark has been a difficult task for many clients. I can only assume it’s been difficult on the DIBP compliance side as well. While this is an extra cost, I think it will work better.

From March 2018, businesses with turnover of less than $10 million per year will be required to make:

  1. an upfront payment of $1,200 per visa per year for each employee on a Temporary Skill Shortage visa
  2. a one-off payment of $3,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

Businesses with turnover of $10 million or more per year will be required to make:

  1. an upfront payment of $1,800 per visa year for each employee on a Temporary Skill Shortage visa
  2. a one-off payment of $5,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

I acknowledge the assistance of the MIA in helpfully providing a summary of this information to its members.

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