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.
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by Paul Cutler | Feb 20, 2023 | Uncategorized
I have previously blogged about Ms Pearson’s first Full Court case. Her first attempt to have the decision to cancel her visa on character grounds revoked failed.
In a very unusual step, she filed a second application some 7 months later (in October 2022). One of her new arguments was that her visa shouldn’t have been cancelled because she hadn’t been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)). If that was correct she didn’t have a substantial criminal record.
Although it sounds pedantic, Ms Pearson had in fact been sentenced to an aggregate sentence of 4 years and 3 months for 10 offences. The effect of an aggregate sentence is that an offender is only given indicative sentences for the individual charges. Indicative sentences are not able to be appealed.
The Full Federal Court agreed with Ms Pearson and found that the proper construction of section 501(7) was that a term of imprisonment was not the same as an aggregate term of imprisonment. In fact (at [47]): “had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so.”
In an interesting postscript to this decision, parliament has now decided to “say so”. The Migration Amendment (Aggregate Sentences) Act 2023 (the Aggregate Sentences Act) came into effect on 17 February 2023.
The Aggregate Sentences Act retrospectively validates past decisions that would otherwise have been invalid because of the Pearson decision, but in some circumstances restores review rights in applicants are still within the relevant timeframes.
It is worth checking the details if your visa has been cancelled on the basis of an aggregate sentence.
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by Paul Cutler | Jan 27, 2023 | Uncategorized
How hard can it be to make a valid application to the AAT?
You might be forgiven for thinking that section 29(1)(c) of the AAT Act which says that an application “must contain a statement of the reasons for the application”, is clear.
Despite Mr Miller’s application not containing the reasons (which was agreed), a copy was later provided when the AAT requested it. That request came outside the 9 days timeframe allowed for lodging reviews of character cancellation matters.
The AAT proceeded to review his matter and affirmed the cancellation decision.
Miller appealed to the Federal Court. The Minister took the point that the AAT lacked jurisdiction because of non-compliance with s 29(1)(c) but accepted that there would otherwise be a jurisdictional error in the AAT decision. Derrington J found that 29(1)(c) was mandatory and dismissed the appeal.
In the Full Federal Court, Miller argued (for the first time) that writing the words “non-revocation of a visa cancellation” on the application form (he had used the incorrect form) was a sufficient statement of reasons. His appeal was dismissed, but not before the Full Court had considered:
- Project Blue Sky – whether “must” is mandatory will depend on statutory context;
- the other sub-sections of s29(1), finding that (a) (application in writing) and (d) (decision document shall be lodged in prescribed time) were mandatory , but that (b) payment of the fee, was not. The latter is because of sections 69C(1) and 70 which deal with timeframes for what happens if fees aren’t paid;
- s29(7)-(9) in relation to extensions of time; and
- s29AB being the AAT’s power to request amendment of the application.
In short, the Full Court agreed that 29(1)(c) was mandatory.
I come back to where this story started. Although mistakes can be made (apparently), it’s really not that hard to follow section 29 and make a valid application. You can read the Full Court decision here.
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by Paul Cutler | Dec 7, 2022 | Uncategorized
Visa cancellations on national security grounds are rare and they often raise complex issues at the intersection of procedural fairness and secret information. SDCV v Director General of Security [2022] HCA 32 was not an exception.
In 2018 (after his citizenship application was approved but before the ceremony), ASIO found that SDCV was a security risk as he had links to terrorism and had used a covert phone for some of his communications. His visa was cancelled and he unsuccessfully sought review in the AAT. The AAT conducted a partly closed hearing (without SDCV) and some “certificated” information was not disclosed to him. Open reasons affirming the decision were published along with separate “closed” reasons which were not disclosed to SDCV.
SDCV didn’t seek judicial review of the AAT decision but instead appealed the matter to the Full Federal Court under s44 AAT Act. This raised the issue which took the case to the High Court namely, whether 46(2) AAT Act was invalid. Section 46(2) says the Court will “do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding”.
The High Court judgment is complicated and in the context of the short and informal nature of this blog, all I can do is give you a brief “executive summary”. There will undoubtedly be much ink spilled over this case if you are looking for something more detailed.
Whether or not 46(2)was invalid or not depended on whether there was a requirement of a minimum level of procedural fairness. This has been something which has been the subject of academic debate for a long time and it was my view (until now, at least) that procedural fairness can’t be totally excluded. However:
- The plurality (joint judgment of Justices Kiefel, Keane and Gleeson) said there was no minimum requirement and there was no practical injustice to SDCV. Amongst other things the balance of open justice/national security is a matter for the legislature and the impartiality of the Court was not affected;
- Justice Steward agreed that there was no universal baseline requirement but said it would only be in rare circumstances where a fair opportunity to respond would not be given. His Honour noted that there were a number of steps open to the Court (which were not taken) to ensure fairness including appointing special advocates or by disclosing confidential information to the lawyers only; and
- There were three dissenting judgments (Justices Gaegler, Gordon and Edelman) who each published separate reasons and found that 46(2) had compulsorily excluded fairness and was invalid.
I certainly don’t think of myself as a constitutional law expert but this decision appears to me to be out of step with how I understood there was a minimum standard of procedural fairness which could not be excluded. However, for now at least, procedural fairness can be excluded. It will be interesting to see how this develops in future cases.
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by Paul Cutler | Nov 23, 2022 | Uncategorized
The case of AEK20 v Minister [2022] FCAFC 175 is another decision that demonstrates the importance of providing evidence to support claims made in applications for revocation of a character cancellation.
AEK20 moved to Australia from Samoa at age 9 in 1999. In 2012 he pleaded guilty to a murder which was committed in the course of a violent home invasion. He also gave evidence against his co-offenders.
Because he had assisted police and given evidence against the co-offenders he claimed that he feared that he would be killed if he was returned to Samoa. His ground of appeal was effectively that the court at first instance hadn’t properly considered his claim that he would be inadequately protected in Samoa.
The main reasons for dismissing his appeal were set out in [16] of the judgement:
“…..The claim is limited to a subjective fear. The appellant did not claim that he would be “unable to access effective protection if returned to Samoa”. Nor did he claim that there was no form of witness protection available to him in Samoa. Moreover, those representations were not supported by any evidence which might have enabled the Minister to engage in any comparative analysis between Samoa and Australia concerning the risk of harm to the appellant or any analysis of the nature and extent of such risk. Nor was there any evidence of any threats of harm in Samoa, or who in Samoa would seek to harm him (the offending having occurred in Australia)”.
In many respects this amounts to the Applicant didn’t discharge their onus of proof. Evidence to support submissions is important!
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by Paul Cutler | Nov 9, 2022 | Uncategorized
The case of Toki v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 164 serves as a strong reminder of the importance of having corroborative evidence in an application to revoke a character based cancellation.
Toki had an extensive criminal history, including murder of his de facto wife. The Minister personally decided not to revoke the visa cancellation. Toki appealed to the Federal Court arguing that the Minister’s finding that he had no evidence of family support was legally unreasonable. This was because the Minister had access to Toki’s monthly progress reports, one of which mentioned ‘on going regular contact with family, including having an AVL with his sister and her family’.
The Federal Court and the Full Court rejected the appeal, Justices Markovic, Goodman and Raper held that:
- the Minister is not required to refer to every piece of evidence in his reasoning and the submission of the monthly progress report should not be deemed a mandatory consideration; and
- a single dot point in one monthly progress report is of limited value and is of markedly different quality to providing the Minister of corroborative evidence.
The motto of the story is proper preparation. Toki should have provided the Minister with statements and physical representations by family members to corroborate his claim of ongoing family support.
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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.
