by Paul Cutler | May 30, 2023 | Uncategorized
Recusal applications can be awkward and difficult. It is not easy to tell a judge that there is a perception that he/she is baised and shouldn’t sit in judgment on a particular matter. Recusal applications don’t occur very often and applications involving multi-member appellate are even rarer. Consider the following facts:
- Prior to his appointment to the Federal Court, Bromwich J held the office of Commonwealth Director of Public Prosecutions;
- Bromwich J was one of a 3 member Full Court in the matter of QYFM;
- A few minutes before the hearing was due to begin, his Honour sent an email to the parties informing them that he had appeared for the Crown against the current applicant in an unsuccessful appeal against conviction in the Victorian Court of Appeal;
- When the hearing commenced, the Applicant’s counsel made an oral application for Bromwich J to disqualify himself;
- The Full Court briefly adjourned and when it resumed, McKerracher J invited Bromwich J to “deal with the application”. His Honour did not recuse himself and the hearing went ahead.
The Applicant appealed to the High Court (see QYFM v Minister for Immigration [2023] HCA 15). There were two issues. Firstly, was there a reasonable perception of apprehended bias? The High Court considered the relevant law (see Ebner’s Case). The Court found: “His Honour’s appearance as counsel against the appellant in his earlier conviction appeal was sufficient to give rise to a reasonable apprehension on the part of a fair-minded lay observer of the possibility that his Honour had formed and retained an attitude to the appellant incompatible with the degree of neutrality required dispassionately to resolve issues in a subsequent proceeding to which the appellant was a party. “.
The second issue was how should a multi-member court deal with such a recusal application? The short answer is that it is a matter for the “whole court” (not just the individual judge concerned) to decide. Because these facts are very rare there is a very interesting discussion about how similar matters are dealt with in other jurisdictions and what can be learned from existing Australian authority.
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by Paul Cutler | May 17, 2023 | Uncategorized
Earlier visas will be superseded by the grant of subsequent visas under s82 Migration Act. Consider the following chronology (no, not my client):
| Date |
Event |
| 15/12/2014 |
ETA granted – which would expire on 15/12/2015 |
| 18/12/2014 |
Applicant enters Australia on ETA |
| 24/2/2015 |
Applies onshore for 600 visitor visa in tourist stream – this is within the 3 months stay permitted by the ETA |
| 26/2/2015 |
Visitor visa granted (and would cease on 19 June 2015) |
| 18/6/2015 |
Applicant leaves Australia |
| 19/6/2015 |
(yes the next day – with only hours left on his visa) Applicant re-enters Australia |
| 26/8/2015 |
Applicant applies for student visa onshore |
The 2015 student visa application was refused because the applicant didn’t hold any of the relevant visas listed in 572.211(2) (or any visa at all).
The argument that made it all the way to a Full Court was about when his visa “ceased to be in effect” (s82(2)). The Applicant drew an analogy with Lesi v Minister for Immigration [2003] FCAFC 285 and argued that his ETA was somehow “reactivated” on the lapsing of his visitor visa.
Mr Lesi was a permanent resident until his deportation (so, under 82(4) his visa ceased to be in effect). However, when the deportation order was set aside its operation was spent (i.e. it had no effect on the visa held by the person at the time). In those circumstances Mr Lesi’s permanent residence was revived.
Unfortunately for the Applicant in Oraha v Minister for Immigration [2023] FCAFC 21, Lesi had no applicationto the facts of his case and his: “construction of s82(2) of the Act cannot be accepted. Section 77 of the Act, read with the definition of “visa period” in s5, makes plain that, firstly, there is a visa period and, secondly, the visa period has a beginning and an end. This does not envisage that there are, or can be, multiple “beginnings” and multiple “endings”, or that, once the visa period ends, the visa can, somehow, be revived. Section 77 also makes plain that, once the visa period ends, the non-citizen is no longer the holder of that visa. In our respectful view, nothing could be clearer.”
How many times over the years have I advised clients to withdraw redundant applications? It can be very important.
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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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Recusal applications can be awkward and difficult. It is not easy to tell a judge that there is a perception that he/she is baised and shouldn’t sit in judgment on a particular matter. Recusal applications don’t occur very often and applications involving multi-member appellate are even rarer. Consider the following facts:
