by Paul Cutler | Sep 15, 2023 | Uncategorized
Giving weight to the serious of offending is important in character cancellation matters but double counting is easy to do and not permissible.
Mr Jama was a NZ citizen who arrived in Australia as a 17 year old in 2008. His visa was cancelled in 2019 after a conviction for aggravated armed robbery. Needless to say his 444 visa was cancelled.
Clearly the seriousness of his offending and how it was considered in the context of Direction 65 was an important factor in his challenge to the cancellation.
Mr Jama’s argument was that the Tribunal was double counting the weight it attributed to the seriousness of his offending: first by weighing it against the “strength, nature and duration of ties”; and secondly, by concluding that the factors in favour of revocation (including the “strength, nature and duration of ties”) were outweighed by the seriousness of his offending.
In Ali v Minister [2018] FCA 1895, Bromwich J found that the Tribunal could assess the strength and nature of ties to Australia holistically and to examine how the quality of those ties was affected by the offending. However, in Jama v Minister for Immigration [2023] FCAFC 148, the Full Court found that this is not how the decision maker had approached the issue. The Full Court found:
[31]….. [the decision maker] applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations at Reasons
[32] With respect to the primary judge, it is difficult to accept that the Tribunal’s reasoning at Reasons [197] can be read other than as recording that the Tribunal had already found that the strength, nature and duration of ties had been found to weigh only slightly because the Tribunal had already discounted that “other circumstance”, at [175], on account of the seriousness of Mr Jama’s offending. It is readily apparent from a reading of the Reasons as a whole that the Tribunal did indeed “double count” the seriousness of Mr Jama’s offending.
In other words, Mr Jama was successful.
The Ministerial Directions on cancellations and revocations can be more nuanced than they first appear. It is certainly worthwhile reading Ali and also BOE21 which are referred to in the Jama judgment.
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by Paul Cutler | Aug 30, 2023 | Uncategorized
An application to the AAT has to be accompanied by the prescribed fee pursuant to section 347(1)(c) of the Migration Act. Despite my initial view “how hard can it be?” there have been at least two cases on this topic this year!
Fee reduction application
In the first case, Hanna v Minister [2023] FCA 604, the Applicant applied for a fee reduction at the time application was lodged. No actual fee was paid (in the prescribed period) and the Tribunal found it was without jurisdiction. On appeal the argument was that no fee was payable until the Tribunal decided if there would be a fee reduction.
Cheeseman J noted that: “In this appeal, the appellant had to navigate the twin shoals of the 2011 amendment, by which the possibility of outright waiver of the prescribed fee had been removed, and his failure to pay at least 50% of the prescribed fee within the prescribed period.”
Her Honour did not accept the Appellant’s arguments, but left open the question about what would have happened if 50% of the fee had in fact been paid. I wouldn’t advise testing it!
Payment of wrong amount
In the second case, BXS20 v Minister for Immigration [2023] FCAFC 20 the wrong amount was paid, leaving a shortfall of $58. That shortfall was eventually paid, but after the expiry of the prescribed period. Once again, the AAT treated the application as invalid (and it had no jurisdiction).
Although the Full Court considered the relevant cases on payments (by credit card) and the meaning of “accompanied” (which has some flexibility), the preferable construction of 347(1) was that both lodgement and payment had to occur in the prescribed period. In a separate (but not dissenting) judgment, Stewart J threw out a lifeline for future applicants when he observed that rectification (which wasn’t argued) acts retrospectively. So, had been rectification been raised, depending on the facts, the case may have succeeded.
Conclusion
I certainly understand that the prescribed fee is a considerable amount for some applicants, but paying the correct amount is a lot cheaper than fighting about it in the courts afterwards.
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by Paul Cutler | Aug 15, 2023 | Uncategorized
The Minister has to be satisfied that: “the grant of the visa is in the national interest” (clause 790.227 of Schedule 2 of the Migration Regulations) before granting a Safe Haven Enterprise visa
In ENT19 v Minister [2023] HCA 18 the applicant was an Iranian gentleman who had been convicted of people smuggling (section 233C Migration Act). He was sentenced to 8 years in prison. Notwithstanding that problem he was otherwise found to have met the requirements for a protection visa. It was accepted that he was not of good character. However, the basis for the visa refusal was not meeting the national interest (790.227) requirement.
The appeal was brought in the original jurisdiction of the High Court. There was a narrow 4:3 majority judgment in favour of the Applicant.
In the decision making process, the Minister expressly decided that PIC 4001 was satisfied (i.e. exercised her discretion not to refuse the visa even though the character test was not met). In addition, the Minister also disavowed any reliance on 501(1) (the Minister’s discretion to refuse the visa on character grounds).
The majority (Gordon, Edelman, Steward and Gleeson JJ) found that in those circumstances, “something extra” (apart from the obvious character issues) would have to be relied on for a finding that the visa grant wasn’t in the national interest. This is effectively saying the Minister can’t have it both ways. The following two extracts from the majority judgment make that clear:
[97] Clause 790.227 was not intended to be a trump card for the Minister or delegate to use to refuse a visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to that decision.
And
[106] Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power.
The appeal was successful and the refusal decision was quashed. The matter was remitted to the Minister to be determined by law.
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by Paul Cutler | Jul 26, 2023 | Uncategorized
Was it an irrelevant consideration to take into account juvenile offending when deciding to revoke a character cancellation decision? In Minister v Thornton [2023] HCA 17, a majority of the High Court found that it was.
Mr Thornton came to Australia from the UK as a 3 year old. By the time he had turned 16, he had been found guilty of a number of offences (including assault/obstruct police officer) in the QLD Children’s Court. His bad behaviour (more assaults) continued after he turned 18 and inevitably his visa was cancelled.
The issue which took the matter to the High Court was the intersection of the Youth Justice Act 1992 (QLD), the Crimes Act and s501CA of the Migration Act. Under the Youth Justice Act, Mr Thornton was taken to have never been convicted of an offence as a child under QLD law.
It was clear that in assessing whether he was an unacceptable risk to the community, the Minister had taken the childhood offending into account.
One interesting feature of this case, is that it appears that the issue of childhood offending was raised by Mr Thornton. Gordon and Edelman JJ (at [47]) noted that the Minister was required to consider Mr Thornton’s representations (which included reference to childhood offending). However, that didn’t prevent it being an irrelevant consideration which resulted in an error of reasoning.
Gageler and Jagot JJ (at [37]) found that considering the childhood offending was both impermissible and material in the sense that the decision might have been different if it hadn’t been considered.
Steward J’s dissent was based primarily on a different construction of the Crimes Act. However, his Honour also referred to Viane as authority for the proposition that there may be few mandatorily irrelevant matters that the Minister must not consider.
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by Paul Cutler | Jun 27, 2023 | Uncategorized
The giving of documents to a visa holder which relate to the cancellation of their visa is more complex than it might seem.
Basically the options are by giving notice under section 494A (using one of the methods in s 494B) which then enliven the deeming provisions in s 494C. The other alternative is rely on regulation 2.55(3)(c) and the deeming in reg 2.55(7).
There are some subtleties in the requirements of those sections including the difference between an address “known to” and one “provided to” the Minister.
The argument that regulation 2.55 was inconsistent with 494A (and therefore invalid) failed in Minister v EVE21 [2023] FCAFC 91. However, Perram J did accept that in some circumstances (just not the current one) there would be inconsistency. There have been other cases where this inconsistency and invalidity have been argued with mixed success.
The other interesting argument in the case were about whether a prison’s PO Box is the PO Box of the prisoner? It is. There was also a brief discussion about whether a prison can be a residential address. Some of the UK cases suggest that there is an element of “voluntary” in determining someone’s residential address.
It’s always a good idea with these cases to check if the service provisions have been complied with.
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by Paul Cutler | Jun 13, 2023 | Uncategorized
A new Ministerial Direction No 99 (visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa) commenced on 3 March 2023. This Direction replaces Direction 90.
Under the old Direction 90 the strength, nature and duration of ties to Australia were considered under other considerations, under this new Direction 99 this has now been added as a primary consideration under Part 2 Section 8, with the effect that these considerations should generally be given more weight by decision-makers.
The principles under Subsection 5.2 have also been amended with the following paragraph added under 5.2(5):
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.
I have previously blogged about being an alien by “the barest of threads“. I borrowed that title from an academic paper which looked at the position of Stefan Nystrom (who had lived in Australia since he was four weeks old, but who was nevertheless sent back to Sweden, a country with which he had no connection).
Hopefully the new direction will help some of these long term residents who are effectively “home grown” problems despite their foreign citizenship.
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Giving weight to the serious of offending is important in character cancellation matters but double counting is easy to do and not permissible.
