Current Address

by Paul Cutler | Jun 28, 2024 | Uncategorized

I have lost count of how many times I have stressed to clients that it is important that their current address is notified to the Department. Sometimes that is not as easy as it sounds. It is also very difficult to undo adverse decisions which are made because the current address held by the Department is not actually current.. The decision in DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75 illustrates these difficulties.

The facts of that case

1. The protection visa application was refused in January 2020;
2. The Applicant had been arrested on 23 October 2020 and remained in custody;
3. In October 2021, the Tribunal sent a hearing invitation to the applicant for a hearing scheduled for 1 November 2021;
4. The Applicant was unaware of the hearing and did not attend;
5. The Tribunal dismissed the application;
6. The Applicant (unsurprisingly) did not apply for reinstatement and the Tribunal confirmed its decision on 17 November 2021;
7. It was accepted that prisoners do not have general access to the internet.

Under section 418(3) Migration Act the Secretary of the Department has to provide anything “relevant to the review of the decision” to the Tribunal. The Department was in possession of a Corrective Services spreadsheet dated 2 November 2020 which notified it of the Applicant’s arrest. This spreadsheet was not passed onto the Tribunal (although the Department updated it’s own records).

The grounds for review were effectively that: (a) there had been a breach of the duty in s418; and (b) the Tribunal could have made enquiry to ascertain the address. 

Both arguments failed.

In relation to the breach of duty argument there are a number of cases which are authority for the proposition that the Secretary’s failure to perform the duty doesn’t invalidate the decision of the Tribunal. The Full Court drew an analogy with the “migration agent fraud cases” and found that unless the breach of duty “stutifies” the exercise of the Tribunal’s power then it will not be enough.

Similarly with the failure to make enquiry about a critical fact, it was accepted that: “Asking the Department what it knew was clearly a reasonable (indeed, desirable) step to take” but, “it does not follow that the Tribunal fell into error by not taking that step. The same would be true of most if not all cases where a review applicant does not respond to a hearing invitation and does not attend the hearing.”

The take home message from this case is that Tribunal notices are sent to the last address provided by the review applicant. It is important to keep address details up to date!

Creative commons acknowledgment for the photograph.

Best interests of the children

by Paul Cutler | May 29, 2024 | Uncategorized

The best interests of minor children is one of the primary considerations which has to be taken into account in making a decision whether or not to revoke a visa cancellation on character grounds. Usually, the interests of children is raised by Applicants as a reason in favour of revocation i.e. the children shouldn’t be separated from, or deprived of, a relationship with both parents.

The Full Court decision of  Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59  is interesting for a couple of reasons. Firstly, because the judicial review applicant succeeded on a ground that wasn’t raised before the primary judge; and secondly because the Tribunal found that the best interest of the children would be served by separation from their father. The jurisdictional error was that Mr Korat was dealt with in a procedurally unfair way when the interests of the children factor was applied in support of the cancellation decision.

Submissions to the Tribunal

Mr Korat’s visa had been cancelled inter alia because of assault conviction and some breaches of an AVO. Unfortunately some of that offending conduct had been directed towards his wife. One of the factors relevant to the interests of the children was the position of Mrs Korat (the applicant’s wife):

1. Before the delegate, Mrs Korat had said that if her husband’s visa application for revocation was unsuccessful, she would relocate to India with their two children; however, 
2. by the time the matter was in the Tribunal she had had a change of heart and her evidence was that she and the children would remain in Australia.

This clearly influenced the way the parties made their submissions at the Tribunal:

1. the Applicant argued that Mr Korat had played a significant role in the upbringing of his children and that the best of interests of the children were strongly in favour of the revocation of the cancellation decision; and
2. the Minister accepted that the factor would weigh in favour of revoking the visa cancellation but that it should not have been given much weight.

Decision of the Tribunal

Despite those submissions, the Tribunal found (see [23] of the judgment) that:

1. If the appellant’s visa cancellation was not revoked such that he would return to India, Ms Korat would not leave Australia, and neither would the children.
2. The appellant’s drinking issues had not resolved and were not purely a historical problem. The appellant remained vulnerable to resorting to alcohol use and then engaging in aggressive behaviour.
3. The family violence and the alcohol misuse presented serious challenges to the proposition that revocation of the visa cancellation was in the children’s best interest.
4. Ms Korat had cared for the children all their lives, including during the appellant’s incarceration and detention, and she had fulfilled the parental role as a loving, caring, and responsible parent.
5. On balance, the Tribunal would give the “best interests of the children consideration” some weight against revocation. This was principally for two reasons: (1) Ms Korat would remain in Australia with the children and had looked after them lovingly and well; and (2) the appellant’s drinking issues were live issues which might devolve into aggressive behaviour.
6. Thus, the Tribunal concluded that the best interests of the children were better served by the appellant being separated from the children, giving the consideration some weight against revocation

The procedural fairness issue

The Full Court found that Mr Korat had not been given procedural fairness because:

[61] The Tribunal had asked Ms Korat questions relevant to the “best interests of the children consideration”, but the Tribunal had not directly put to a witness, or raised as an issue with the appellant, that the “best interests of the children consideration” might weigh against revocation as opposed to a matter: (a) going to how strongly the matter weighed in the appellant’s favour; or (b) neutralising it as a matter in the appellant’s favour. The Tribunal did not raise the issue during submissions.

[62]….In light of the course of the proceedings, practical injustice could only be avoided if the appellant were provided an opportunity to address the issue which the Tribunal ultimately found against the appellant. This was not an issue put forward by the parties, it was not an issue which the Tribunal squarely raised, and it was not an issue which was obvious given the course of the administrative decision-making process and the course the proceedings had taken; and 

[63] The denial of procedural fairness deprived the appellant of a realistic possibility of a different outcome:……The Tribunal heard no argument (from either party) about why the “best interests of children consideration” should not weigh against revocation.

If nothing else, the decision is a good example of procedural fairness in action.

Creative commons acknowledgment for the photograph.

The Failure to Cooperate Judgment

by Paul Cutler | May 10, 2024 | Uncategorized

The High Court gave its judgment in the failure to cooperate case today (10 May 2024 – see ASF17 v Commonwealth of Australia [2024] HCA 19). In my earlier blogpost I expressed my view that ASF17’s failure to cooperate would be fatal to his case. It turns out that my prediction was correct. If you only read a few paragraphs in the judgment it should be these ones (with my underlining added):

THE POSITION OF ASF17

[7] For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran.

[8]  Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

[9]  The Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay (“the third country removal policy”). Considerations underpinning the third country removal policy include the potential for diplomatic controversy were someone to be removed to a country which had not agreed to accept them and the lack of any basis for generally considering that a country would agree to accept anyone who has no right of residency or long-term stay in that country.

[10] The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as “intractable”.

and….

EFFECT OF HIS FAILURE TO COOPERATE 

[42] The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

and….

[48] ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.

[49]  On those undisturbed findings of primary fact, the evaluative characterisation of the primary judge, that there is a real prospect of removal of ASF17 from Australia to Iran becoming practicable in the reasonably foreseeable future, such that the constitutional limitation identified in NZYQ has not been exceeded, is correct. ASF17’s continuing detention under ss 189(1) and 196(1) of the Act does not exceed the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution.

[50]  The appeal will be dismissed with costs.

Failure to Cooperate

by Paul Cutler | Apr 30, 2024 | Uncategorized

The legislative attempt to make failure to cooperate a criminal offence passed the Lower House but not the Senate on 26 March 2024. The Migration Amendment (Removal and other Measures) Bill 2024 creates a new class of people called “removal pathway non-citizens”. In some circumstances the Minister can give directions to those people to assist with their own removal from Australia. Their failure to cooperate will be an offence.

When all of this was newsworthy at the end of March there were media reports about a pending High Court case. That case is ASF17 v Minister which was heard on 17 April 2024 and judgment is reserved.

I have read the submission of the parties which are on the High Court website. Thankfully the High Court rules compel brevity.

Some brief facts

The appellant is a citizen of Iran detained in Australia. He has been detained by officers of the Commonwealth for over 10 years under the Migration Act 1958 (Cth). He is bisexual. The Commonwealth accepts that sexual intercourse between males is illegal in Iran and can attract the death penalty

The appellant’s case was that, at all relevant times, the Commonwealth: (1) knew Iran would not issue travel papers for the involuntary removal of one of its citizens from Australia; (2) knew the appellant would not go to Iran voluntarily; and (3) never considered possible pathways to removal from Australia other than to Iran. The appellant accepted that, if he cooperated by taking certain steps, he could be removed to Iran.

The Applicant had requested removal from Australia to some country other than Iran (to no avail). The stalemate between ASF17 and the Commonwealth is obvious. His failure to cooperate is making it impossible to remove him and there is nowhere else that he can be sent.

The issue – cooperate

As we now know from NZYQ detention can’t be indefinite and becomes unlawful when there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future. The issue before the High Court is basically about whether his continued detention is lawful or not when ASF17 is not cooperating in his removal.

There are a number of authorities referred to in the written submissions of the parties (see  Al Masri (2003), WAIS (2002) SPKB (2003)) which basically say that an applicant can’t create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal. In effect, you can’t take advantage of a situation that you have created.

My personal view on this is that ASF17’s failure to cooperate will be fatal to his case. If that turns out to be correct I don’t see much point in making failure to cooperate an offence (which would just result in further lawful criminal detention).

Creative commons acknowledgment for the photograph.

Indefinite Detention

by Paul Cutler | Feb 29, 2024 | Uncategorized