by Paul Cutler | May 30, 2022 | Uncategorized
XXBN’s partner visa was cancelled under 501CA Migration Act after a series of domestic violence incidents, breaches of ADVO’s and ultimately several assault charges relating to his partner and her sister. The complication in the facts was that his partner (and her sister) had both given evidence that they had forgiven him. They also both provided statements in support of the cancellation being revoked.
Despite this support, his application to revoke the cancellation was unsuccessful and by the time it reached the Full Federal Court, the argument was about how to deal with two of the “other factors” which have to be considered under Direction 79, namely “strength, nature and duration of ties” and “impact on victims”.
The Applicant argued that each of those factors had to be considered separately and he would effectively receive a double weighting because his victims and his family were one and the same. The Court found: “The Tribunal implicitly acknowledged that it would have been a duplication to then give a further weighting in favour of revocation on the basis of the same considerations under other consideration (d) [impact on victims]. There is no error in that approach.”
And just for good measure the court agreed that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”
You can read the whole case here: XXBN v Minister for Immigration [2021] FCA 1047
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by Paul Cutler | May 18, 2022 | Uncategorized
It’s not controversial that if Applicants are unresponsive to the Minister’s requests for information a delegate can exercise the discretion (under s62 Migration Act) to refuse the visa. The recent single judge (Gordon J) High Court decision of Plaintiff S183 v Minister [2022] HCA 15 demonstrates that the discretion has to be exercised reasonably.
Plaintiff S183 was a Turkish lady who feared persecution because of her sexuality. She had engaged in scattered correspondence with the Department in broken but intelligible English. By August 2019 the plaintiff was homeless and eventually hospitalised due to her declining mental state. In January 2020 she was invited to an interview in Melbourne (even though she lived in Sydney). She told the Department that she had no money and couldn’t travel to Melbourne. The interview was re-scheduled in Sydney and the Applicant didn’t attend (and the visa was refused).
Gordon J noted the following:
[32] … the critical point is that it was apparent on the face of the email sent by the plaintiff on 20 February 2020 that she did not realise that the Department was offering her an interview in Sydney. …
[33] This also has to be seen in the context of other information on the plaintiff’s file which was in evidence before this Court, including the plaintiff’s email sent three days earlier, in which she said, among other things: “i am in sydeny without money and home, i have been reaaly bad situation to come back melbourne for case, no body listen to me even government, call me bla bla or whatever or ye ye ye, i am really suffering mentally and phscichly“. The Minister submitted that this was “a rational response written in English”. That submission cannot be accepted. The information before the delegate indicated that the plaintiff was homeless, had no money, struggled to communicate in English and had been experiencing serious mental health issues requiring hospitalisation.
[34] No one from the Department attempted to correct the plaintiff’s misunderstanding as to the location of the interview she was being offered….
[35] It must be accepted that, if a visa applicant is unresponsive, there may come a point in time where it is reasonable for a decision‑maker to exercise the discretion under s 62 of the Migration Act and make a decision to refuse to grant a visa. But no reasonable decision-maker could have decided that that point had been reached when the plaintiff had obviously misunderstood what was being offered to her and no one attempted to correct her misunderstanding.
As a result her Honour granted an (18 month) extension of time and proceeded to quash the delegates decision.
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by Paul Cutler | May 9, 2022 | Uncategorized
Generally spouse visas are provisional for 2 years before they become permanent. This is to weed out the non-genuine or short term relationships. There is an exception to the 2 year rule if there is family violence. In Minister v Gupta [2022] FCAFC 51 the Full Court had to resolve an issue about the construction of 100.221(4) which provides inter alia: (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and (b) the applicant would meet the requirements of subclause (2) or (2A) [the 2 year rule] except that the relationship between the applicant and the sponsoring partner has ceased [because of family violence]….
The controversy arose because the AAT found that Ms Gupta and her partner were never in a genuine spousal relationship (s 5F) and as a result 100.221 couldn’t be made out and didn’t apply at all. In the Federal Circuit Court, the judge applied Wigney J’s decision in El Jejieh and found that the AAT had fallen into error because the requirement was the “holding” of a visa, not the genuineness of the relationship.
The Full Court resolved the issue as follows:
- Accordingly, we agree with the finding of Jagot J in Hannaat [23] that where the Tribunal found that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, the consequence was that the question of family violence did not arise for consideration. That is so even though we accept that the reasoning in Kaur at [43]-[44] (Murphy J) (on which Jagot J relied) related to a finding of the Tribunal in relation to the failure to satisfy the time of application criterion in cl 820.211 in determining to affirm a decision to refuse a provisional visa under cl 820.221 without considering whether a claim to family violence was made out.
- ….
- With respect, we do not agree with the reasoning in El Jejieh at [204]-[206]. We note that the issue of the construction of cl 100.221(4)(b) was neither considered by the FCCA Judge nor raised in the notice of appeal in El Jejieh; it was advanced by Mr El Jejieh’s counsel on the appeal with leave to rely on an amended notice of appeal over the Minister’s objection: see El Jejieh at [111]. The decisions in Kaur and Hanna are not referred to in El Jejieh and they do not appear to have been drawn to Wigney J’s attention.
That makes sense because a non-existent relationship can’t actually end because of family violence.
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by Paul Cutler | Apr 28, 2022 | Uncategorized
Jurisdiction (the power to decide) is fundamental to all proceedings and applications. Sometimes, particularly in courts where power is limited by statute it can also become very complicated. The term “accrued” jurisdiction is often used without appreciating where the limits lie. In FJE20 v Minister for Home Affairs [2022] FCAFC 45 the applicant sought a number of injunctions (in relation to his removal to PNG) and declarations but also sought damages for a common law negligence claim. The primary judge found that the (then) Federal Circuit Court (FCC) didn’t have jurisdiction for the negligence claim. The Full Court dealt with the matter in two steps. The first involved a finding that some of the public law remedies were within jurisdiction (this is the decision I have just referred to) and the parties have been invited to make more submissions about the negligence claim (incl whether the matter should be transferred to the Federal Court). In other words, there’s more to come!
The basic issues were:
- FCC has original jurisdiction conferred by parliament;
- Section 476 Migration Act gives the FCC the same jurisdiction as the High Court in relation to migration decisions;
- migration decision is a defined term (s5) and it includes privative clause decision;
- privative clause decision is defined in s474 Migration Act
Basically the argument was about the meaning of “in relation to”. There is authority for the proposition (Fernando) that s 476A(1) of the [Migration Act] is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and a “migration decision”.
There were also some interesting submissions (by the respondent) that the relief sought was hopeless, inutile and hypothetical. Just because a claim made within jurisdiction is weak or even hopeless only means that it will be dismissed within jurisdiction.
It sounds from the judgment as if (as a matter of case management – facilitate the resolution of the matter quickly, inexpensively and efficiently) the negligence claim is not within jurisdiction and that part of the claim will be transferred to the Federal Court.
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by Paul Cutler | Apr 21, 2022 | Uncategorized
I am often surprised that there are so many cases about defective “statutory notices” and it really shows that any notice your client receives should be scrutinised to make sure it is compliant.
In Lewis v Minister [2022] FCA 205 (another 501CA character cancellation matter) two invitations to make representations to revoke the cancellation were issued, some few weeks apart. The invitations were materially identical except for their date. Both required receipt from the applicant of any representations within 28 days. The applicant made representations within 28 days of the second invitation, but not the first. The Minister’s delegate treated those representations as having being made within the period but refused to revoke the cancellation. On review, the Minister changed his position and argued that the s 501CA(4) power to revoke had not in fact been enlivened, because representations should have been made within 28 days of the first invitation (there being no power to issue a second invitation and so practically extend the 28 day period).
Allsop CJ found both notices were invalid because they wrongly specified the time for response as being “received within 28 days”. The Full Court in Stewart v Minister [2020] FCAFC 196 held that the representations responding to the invitation referred to in s501CA(3)(b) be “made” within the 28-day period does not mean “received” but “dispatched” (by the Applicant).
Stewart has been applied in in EPL20 v Minister [2021] FCAFC 173 (which was subject to an unsuccessful special leave application) and Sillars v Minister [2021] FCAFC 174.
One of the admin law thorny issues (which wasn’t necessary to decide) related to the AAT which affirmed the revocation because it found that the representations were out of time (based on the first notice). However, as Allsop CJ points out, did it have power to review an invalid decision at all?
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XXBN’s partner visa was cancelled under 501CA Migration Act after a series of domestic violence incidents, breaches of ADVO’s and ultimately several assault charges relating to his partner and her sister. The complication in the facts was that his partner (and her sister) had both given evidence that they had forgiven him. They also both provided statements in support of the cancellation being revoked.
