Current Address

current addressI 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!

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Best interests of the children

unfairnessThe 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.

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The Failure to Cooperate Judgment

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

Refuse to cooperateThe 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).

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Indefinite Detention

Indefinite detentionIndefinite detention typically arises in circumstances where a person is held in immigration detention and it is not possible to remove them from Australia. In recent years a number of applicants who have alleged indefinite detention have had mixed success in obtaining writs of habeus corpus for their release (see for example my post about ALJ20). Those applications had to grapple with Al-Kateb v Godwin (2004) 219 CLR 562 which was authority for the lawfulness of indefinite detention.

The issue arises from the operation of sections 189(1) and 196(1) of the Migration Act dealing with the long term detention of unlawful non-citizens. Those sections, paraphrasing, require the detention of unlawful non-citizens but only until they are either: (a) granted a visa; or (b) removed from Australia. In the case of the latter there is a duty that the removal happen as soon as practicable.

November 2023 – NZYQ

NZYQ is a Rohingya muslim man who arrived in Australia by boat in 2012. While he was in the community on a bridging visa he committed a sexual offence against a child to which he pleaded guilty and was sentenced to 5 years imprisonment. He applied for a protection visa from jail. He was found to have a well founded fear of being returned to Myanmar, he was also found to be a danger to the Australian community. The result was that his protection visa was denied.

As a result, he found himself the subject of indefinite detention because he couldn’t be sent back to Myanmar and the effect of the conviction was that no other country in the world that would offer him resettlement. 

The Constitutional issue

All lawyers know that constitutional law is complicated. So, I am making a gross oversimplification by saying that at the heart of this decision is the difference between punishment (which can only be ordered by a court) and administrative detention. A recent example of how this works was the finding that it was an invalid use of power for the executive to administratively put an end to someone’s citizenship in some circumstances (see the Alexander case).

In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the High Court found that the statement in Al-Kateb that detention was non-punitive was incomplete. The Court found:

The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two.[52] Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry.

Accordingly, that purpose can’t be made out when there simply isn’t any real prospect of achieving removal from Australia.”

The result – no basis for indefinite detention

[71] The consequence of ss 189(1) and 196(1) of the Migration Act not validly applying to authorise the continuation of the plaintiff’s detention at the end of the hearing on 8 November 2023 is that the sole statutory basis relied on by the defendants for the continuation of his detention fell away and the plaintiff was entitled to his common law liberty. 

[72] Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.

So, a writ of habeas corpus requiring the release of NZYQ was issued forthwith. Of course we all know that the decision has generated lots of debate in the media and in parliament about releasing unsupervised non-citizen criminals into the community.

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Remitted

jettisonedYou may remember that the High Court remitted QYFM to a differently constituted Full Federal Court after it found that Justice Bromich should have recused himself. I have previously blogged about the recusal decision.

When the matter arrived back in the Full Court the original grounds of appeal were “jettisoned” and leave was sought to rely on six new ones. The appellant was also granted leave to rely on the AAT transcript which had not been before the original Full Court. That transcript revealed that the Appellant (who was self represented in the AAT) had been given a warning about the privilege against self incrimination. One of those warnings arose in the context of a reference from a former employer WS. Apart from being unsure of WS’s gender the following occurred:

SENIOR MEMBER: All right. And how do you know [WS]?

WITNESS: I know him from a long way back, so [WS] is a long way back.

SENIOR MEMBER: Okay. And what do you mean a long way back, is that a friendship or did you work for him or how do you know each other?

WITNESS: It’s a friend – he’s a friend.

SENIOR MEMBER: Oh he’s a friend?

WITNESS: Yes.

SENIOR MEMBER: So have you worked for [WS]?

WITNESS: No.

WITNESS: No, I have not worked for him (indistinct).

SENIOR MEMBER: All right. Well why does [WS] then say in his letter, he was with us from July 2011 to December 2012 and his high work ethic and leadership potential was realised, resulting in [the appellant] being quickly promoted to warehouse supervisor, if you haven’t worked for him, how can it be that he said these things?

WITNESS: I think I must ask him what do they call it? I must ask him some character reference and that’s what he was referring to so (indistinct) people to – (indistinct) people as, you know, helping them – yes, you know, as a friendship helping and that’s why I think he might have meant it that way.  But I have no word for it.

SENIOR MEMBER: So has [WS] provided false information to the tribunal, saying that you had worked for him?

WITNESS: It could be so – – –

SENIOR MEMBER: But … you provided these letters to the tribunal in support of your case, why have you provided something that’s false?

Things only got worse when later that day, the Tribunal telephoned WS.  The transcript records, in essence, his evidence that he had never known the appellant.  The Tribunal then asked whether the appellant had “any questions at all of the witness”.  The appellant replied:  “No”. This led the Senior Member to say: ” … I have some serious doubts … that you have provided statements that are true and accurate“.

Whatever the legal merits (or not) of this case were, credibility issues like the one created for himself were very unhelpful to the application!

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