by Paul Cutler | Apr 18, 2023 | Uncategorized
We all know that when an Applicant has lost their case in the Tribunal, the Minister has “God powers” to substitute a more favourable decision if it is in the public interest to do so (see s351 Migration Act). That power can only be exercised personally by the Minister.
Up until 12 April 2023 when the decision of the High Court in Davis v Minister for Immigration [2023] HCA 10 was handed down, there was a 2016 Ministerial Instruction which acted as filter on which applications actually made it to the Minister’s desk. That Ministerial Instruction has found to be an impermissible delegation of power to departmental officers.
Like many constitutional law cases, Davis is complicated and there are several different judgments. However, distilling it down to basics and using the words in para [14] of the majority judgment:
The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision – which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision – is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so.
While it is acceptable for the Minister to engage staff to sort the wheat from the chaff, the 2016 Ministerial Instruction provided that only cases with unique and exceptional circumstances should be referred personally to the Minister. The High Court found that the Minister could not use a delegation of executive power in this way to circumvent the personal use of power. In other words it was effectively the departmental officers who were making the decisions (exercising the power) about what was in the public interest.
The judgment is even more complicated than that and deals with the regime relating to repeat requests. I’ll leave it to you to read for yourself.
However, there will now be hundreds of cases (more possibly) where applications for Ministerial intervention have been incorrectly dealt with. There are also other sections in the Migration Act which are structured in a very similar way to section 351. It will be interesting to see what happens now.
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by Paul Cutler | Apr 4, 2023 | Uncategorized
Mortimer J’s judgment in Singh v Minister for Immigration [2023] FCAFC 46 touches on two personal bugbears that I have in character cancellation matters.
Mr Singh’s student visa was cancelled in December 2018 after he pleaded guilty to a sexual assault matter. No conviction was recorded and he was punished with a fine. His student visa cancellation was set aside in the AAT.
In March 2019 his wife applied for a 485 visa and he was included as a secondary applicant. He was refused on character grounds.
The first issue is the “temporal issue”. Clearly it’s on the applicant to show that he would be unlikely to engage in criminal conduct in Australia (para 6(d)(i) of Direction 90). But for how long? Forever or just for the period of the visa? Her Honour accepted that the character test was a type of “filter” and it was directed to behaviour likely to occur in the visa period. The problem for the Applicant is that in his case in the AAT he raised the issue of having a family and staying permanently. As a result there was no error in the Tribunal considering the risk of offending over a longer timeframe.
The second issue is the “seriousness” of the offending. I often hear the Minister’s lawyers arguing that errors on incoming passenger cards are very serious. Clearly Mr Singh got off very lightly on his sexual assault charge (a fine and no conviction). Mortimer J made it clear that delegates and tribunal members were not sentencing judges and that visa cancellation is not a further punishment. However, assessment of seriousness was not limited to the offending. It extended to insight and views about the offending. Therefore it was an evaluative judgment for the decision maker who was guided by executive policy.
Her Honour also noted that the argument proceeded, at least implicitly, on the premise that the sentence imposed on the appellant was at the “low end”, in terms of a tariff in the Magistrates’ Court the appellant’s sentence might not, objectively, have been at the “low end”. There was no evidence before the Tribunal which could inform where the sentence imposed on the appellant sat in terms of outcome for the kind of offending for which he was convicted.
It’s starting to seem to me that “seriousness” is up there with “credibility” when it comes to determinations which appear to be (almost) unchallengeable!
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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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We all know that when an Applicant has lost their case in the Tribunal, the Minister has “God powers” to substitute a more favourable decision if it is in the public interest to do so (see s351 Migration Act). That power can only be exercised personally by the Minister.
