by Paul Cutler | May 2, 2023 | Uncategorized
The meaning of “parent” for the purposes of s16(2) Australian Citizenship Act 2007 is not limited only to biological parents. When Charlotte Nguyen’s mother applied for evidence that her daughter was an Australian citizen, the question arose about whether Mr Lieu (who is an Australian citizen) was Charlotte’s father. No DNA test was undertaken. Mr Lieu’s relationship with the mother had ended about 3 months after Charlotte’s birth. However, he was named on the birth certificate, had paid child support and there was a Medicare card.
The Full Court (see Minister for Immigration v Lieu [2023] FCAFC 57 ) was critical of the delegate who focussed on the nature of the relationship between Ms Nguyen and Mr Lieu. The judgment referred extensively to the earlier decision of H v Minister of Immigration and Citizenship (2010) 188 FCR 393. In H v Minister, the court considered that there was nothing in the legislation which limited the word “parent” to mean only biological parents. Being a parent was not just a matter of biology but of intense commitment. The girl’s father had shown commitment to her from the time of birth, believing her to be his biological daughter and caring and raising her as if she was. H v Minister contains a detailed analysis of the meaning of the word parent (by reference to both legal and everyday meanings). It also considers issues of statutory construction and the object of the citizenship legislation.
In the end, the Minister’s appeal in Lieu was dismissed.
There are a number of other cases which are also in this “who is a parent” space, including FMR18, by her litigation guardian FSH18 v Minister for Home Affairs [2018] FCA 1632. Once again a non-biological father was found to be a parent. There is also the AAT case of Ibrahim and Minister for Home Affairs (Citizenship) [2019] AATA 4294 where the Member was satisfied that the child was “informally” adopted at birth due. There was evidence full acceptance and responsibility being taken for the child. There was also financial and emotional support provided to the child’s mother prior to, and at the time, of the birth.
The lesson from these cases appears to be that there must be evidence to show that the child had been treated, by the Australian citizen, as if he/she were their own child from the time of birth.
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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.
Creative commons acknowledgment for the photograph.
The meaning of “parent” for the purposes of s16(2) Australian Citizenship Act 2007 is not limited only to biological parents. When Charlotte Nguyen’s mother applied for evidence that her daughter was an Australian citizen, the question arose about whether Mr Lieu (who is an Australian citizen) was Charlotte’s father. No DNA test was undertaken. Mr Lieu’s relationship with the mother had ended about 3 months after Charlotte’s birth. However, he was named on the birth certificate, had paid child support and there was a Medicare card.
